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https://www.courtlistener.com/api/rest/v3/opinions/8470854/ | MEMORANDUM **
Juan Carlos Ledesma-Lozano appeals from the 62-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Ledesma-Lozano contends that the district court erred at sentencing by: 1) failing to apply the parsimony principle as required by 18 U.S.C. § 3553; 2) failing *199to consider all of the § 3553(a) factors and giving undue weight to the sentencing Guidelines range; and 3) failing to provide an adequate record to support the sentence. Ledesma-Lozano further contends that the sentence is substantively unreasonable. The district court properly considered the § 3553(a) factors and adequately explained the sentence selected. Accordingly, the district court did not pro-eedurally err at sentencing. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Moreover, in light of the totality of the circumstances, the sentence is substantively reasonable. See id.; see also United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (“A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals”).
We remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470858/ | MEMORANDUM *
Leticia De Guzman appeals the district court’s decision upholding the Social Security Administration (“SSA”) Commissioner’s denial of her application for disability insurance and supplemental social security income benefits. Because the parties are familiar with the facts of this case, we recount them here only as necessary.
De Guzman contends that the administrative law judge (“ALJ”) erred in making an adverse credibility determination and rejecting the opinions of three of her doctors. We review the district court’s order affirming the Commissioner’s denial of benefits de novo to determine whether such denial “was supported by substantial evidence and a correct application of the law.” Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.1995). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005).
I
De Guzman challenges the ALJ’s conclusion that she was not entirely credible because of inconsistencies between her reported activities and her alleged limitations, as well as a lack of objective medical evidence to corroborate her symptoms.
A
De Guzman reported wildly varying activity levels over the course of several months that were inconsistent with her claims of chronic, debilitating pain. On January 27, 2003, Dr. Luis Wainstein performed a disability evaluation. She told him that she had experienced “abdominal pain ever since 1995 when she underwent abdominal surgery,” as well as daily headaches that “started shortly after her abdominal surgery.” Nevertheless, she could still work as a hotel housekeeper, “walk 4-5 blocks going to downtown Seattle ... without discomfort,” “clean the bathroom and use[ ] the vacuum cleaner in the apartment,” and wash dishes. When he asked her how she was able to work despite her pain, she told him that “lately this has been getting worse.” However, Dr. Wainstein could not determine a medical explanation for the “aggravation of her symptoms.” Shortly after this visit, De *204Guzman had a chest x-ray and CT scan with unremarkable findings.
After her first disability claim was denied, her symptoms suddenly took a turn for the worse. She filed a request for reconsideration on March 26, 2003, asserting that she was “always very sick” and could not work “due to the pain I always feel in my head, stomach, and chest.” She claimed that she could not “do any house chores because of pain and fatigue” and was “homebound,” “staying] in bed all day because of pain” in her stomach, head, and chest. Three months later, in June 2003, she acknowledged in her daily activities questionnaire that since the onset of her alleged disability, she did light housework such as a “little dusting and sweeping” and used public transportation to go out with her husband.1
A claimant’s “prior statements inconsistent with [her] claim of pain ... may be properly taken into account in determining whether or not [her] claim of disabling pain should be believed.” Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir.1989). It is certainly true that “[s]ymptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time, and this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms.” Soc. Sec. Rul. 96-7p. Hence, the ALJ may look to the case record to find “explanations for any variations in the individual’s statements about symptoms and their effects.” Id. Here there was no objective medical evidence to account for De Guzman’s fluctuating activity levels over this six-month period. While the lack of such evidence is “only one factor that the adjudicator must consider in assessing an individual’s credibility,” id., the record as a whole supports the ALJ’s conclusion that she was not entirely credible.
When she first applied for disability benefits in 2002,2 she alleged post-operative stomach pain and claimed that she “became unable to work because of [her] disabling condition on December 1, 2002.” However, she admittedly continued working as a hotel housekeeper until January 29, 2003. According to the ALJ, that De Guzman continued to work despite her “alleged continued difficulties” was “[m]ost damaging to [her] credibility.” The ALJ properly relied upon discrepancies in her 2002 application in making his adverse credibility determination. See Soc. Sec. Rul. 96-7p (noting that in assessing credibility, the ALJ “must also look at statements the individual made to SSA at each prior step of the administrative review process and in connection with any concurrent claim or, when available, prior claims for disability benefits”).
B
In making the adverse credibility determination, the ALJ also cited De Guzman’s routine and conservative treatment as well as “absent or only mild objective findings and observation of no major difficulties with functioning during the bulk of her examinations.”
*205Although it is true that De Guzman had major surgery to treat her cervical condition, she herself was “very pleased with her increasing mobility, her lack of pain, and her lack of falls,” and she now admits that “the surgery was successful.” Dr. Johnston observed that she recovered “amazingly well” from the operation, with reduced neck pain that was “mild” and “well controlled with Tylenol.” Her films showed normal spinal alignment, and her doctors were “quite happy” with her outcome.
During her post-operative follow-up visits, she denied having dizziness or light-headedness except at one visit, when she said she had experienced dizziness on and off. However, it had resolved itself by the next visit. She did not report any dizziness to her doctors subsequent to September 2004, though in May 2005 she testified at the first hearing that she still experienced dizziness brought on “[w]hen I get up and also when I clean, like cleaning the bathroom.” Though she testified both in May 2005 and December 2006 that she took daily naps, she attributed them to fatigue rather than dizziness.
She still occasionally reported having headaches associated with a bony mass on her left frontal bone, which was removed in December 2005. By January 2006, she was “doing well” and “[djenying any pain,” though her head and neck pain had apparently returned by the time of her second hearing in December 2006.
Although De Guzman reported a history of leg weakness, knee pain, balance issues, and a history of falling, her x-rays were normal, and her treating physician, Dr. Christine Johnston, noted that her “current constellation of symptoms is not necessarily consistent with any clear neurological process.” After her third fall in March 2004, De Guzman visited the emergency room and “asked [the doctor] to assess [her] for [a] walker.” The doctor complied with this request, and she was fitted with a walker at this time.
In June 2004, a month after her cervical spine surgery, Dr. Johnston noted that “[p]ostoperatively, she is doing amazingly well.... She has not had any falls since the surgery. She has continued to use a walker but is at times able to walk on her own.” By July 2004, she had “regained much of the strength in her legs and [was] able to walk well without use of a walker.” According to her physical therapist, she was “making an excellent recovery.” By August 2004, she reported that “she has been walking in Chinatown and doing her [physical therapy] exercises without difficulty.” 3 Her treating physician, Dr. So-hail Mirza, noted in October 2004 that “it is unlikely her left knee pain is directly related to her cervical problem.”
She did not report falling again until a year later, after her one-year work restriction had ended. Although De Guzman testified at her first hearing that only her left knee gave her problems, in August 2005, she reported that her “right knee gave out, causing her to fall to the ground.” Dr. Vaught reported that there were two falls that month: “[o]ne while hurrying in the house and only using [a] cane” and “[o]ne while walking outside looking up and tripped over tree trunk.” In her assessment, Dr. Vaught noted that the falls had an “unclear etiology,” but because De Guzman had fallen while using a cane, she asked her to use a walker until she could see a physical therapist for “gait *206training” and “recommendations regarding safety.”
In September 2005, a physical therapist assessed De Guzman and determined that she did “not test as a fall risk on the Berg Balance scale.” Furthermore, De Guzman’s knees displayed full muscle strength, full range of motion, and normal alignment. Hence, the physical therapist was “unsure at this time as to why she is falling because objectively she is doing quite well actually.” Because of De Guzman’s recent falls, the physical therapist thought that she “would benefit from using walker vs. cane if fatigued or outside the home” and “discussed importance of attending to environment more closely.” In October 2005, Dr. Vaught reported no falls since her previous visit; she noted that De Guzman “tried to be more careful and pay more attention when walking and th[ought] this has helped.”
“[C]onfliet[s] between a [claimant’s] ... subjective complaints and the objective medical evidence in the record” can constitute “specific and substantial reasons that undermine[ ] ... credibility.” Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999). Although De Guzman testified about headaches, neck pain, dizziness, and knee problems, the objective medical record did not support these subjective complaints. After successful spinal surgery, her condition improved markedly and was well controlled to the point that she needed only yearly follow-ups. Furthermore, her most recently documented falls, which occurred four years ago, resulted from inattention rather than an underlying pathology, as evidenced by the fact that her falling improved after she “tried to be more careful and pay more attention when walking.” It was therefore not unreasonable for the ALJ to conclude that the recommendation to use a cane or walker was merely a precaution based on her subjective complaints rather than a clear endorsement or corroboration of her complaints.
C
The ALJ also referred to De Guzman’s lack of cooperation at examinations as a further reason to disbelieve her subjective complaints. However, the only episode in which she was not fully cooperative was her consultative examination with Dr. Timothy Popanz, in which she “appeared irritable and agitated.” She appeared to have been cooperative during the dozens of other examinations she received from the many doctors she visited. While the ALJ’s reliance on this one episode is not a clear and convincing reason to reject her testimony, it was harmless error in light of the other specific and cogent reasons the ALJ cited in support of his adverse credibility determination. See Carmickle v. Comm’r Soc. See. Admin., 533 F.3d 1155, 1162 (9th Cir.2008).
D
Because the ALJ pointed to “specific, clear and convincing reasons” for disbelieving De Guzman, substantial evidence supports his adverse credibility determination. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996).
II
De Guzman contends that the ALJ did not give sufficient reasons for discrediting the opinions of treating physician Dr. So-hail Mirza, examining psychologist Timothy Popanz, Ph.D., and treating physician Amy Vaught.
A
On October 8, 2004, Ms. De Guzman apparently requested and received a form letter from Dr. Mirza (addressed “To *207Whom It May Concern”) stating that “[t]he patient ... [m]ay not return to work/school” for one year from the date of surgery “and [has] permanent limits on bending, lifting, [and] carrying.” The ALJ rejected this opinion on grounds that “prohibiting the' claimant from working for a year after her cervical surgery grossly exaggerates a reasonable recovery time for such a surgery.” 4
In Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002), we clarified that when evaluating conflicting medical opinions, the “ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Indeed, the ALJ refused to accept Dr. Mirza’s brief, conclusory, and nonspecific statement that Ms. De Guzman has “permanent limits,” which conflicted with his June 2004 report that Ms. De Guzman was “progressing well,” along with Dr. Vaught’s November 2004 report that her cervical pain was merely “mild.” These specific, legitimate reasons for discounting Dr. Mirza’s restrictions constituted substantial evidence.
De Guzman contends that the ALJ was obligated to investigate further what Dr. Mirza meant by “permanent limits.” At the first hearing in 2005, the ALJ asked De Guzman’s counsel to “ask [Dr. Mirza] to be more specific about ‘permanent limits.’ ” De Guzman’s counsel agreed, and the ALJ granted her thirty days to obtain the information, at which time she could “make any additional comments.” Although counsel sent Dr. Mirza a physical capacities evaluation form to fill out, for some reason he did not comply with her request, and counsel did not follow up after Dr. Mirza left Harborview Medical Center.5 The ALJ satisfied his duty to develop the record when he “voiced his concern to Appellant and her counsel, requested an additional inquiry into the basis for Dr. [Mirza’s] opinions and explained that he would keep the record open so that it could be supplemented by the responses ----” Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir.1998).
B
On July 14, 2003, Dr. Popanz conducted a one-time “diagnostic interview and mental status exam” in which he concluded that De Guzman suffered from depression, dysthymic disorder, and panic disorder with agoraphobia.
The ALJ discounted Dr. Popanz’s opinion because it “provided little detail regarding specific diagnostic criteria to support [her] diagnoses.” The ALJ noted that Dr. Popanz’s conclusions were “based on a subjective report of symptoms and contrast sharply with the other psychological evidence in the record.” In particular, the ALJ pointed to inconsistencies in De Guzman’s reports of depression prior to the examination. Her husband reported an onset date of 1995, yet she was able to work for many years thereafter at a substantial gainful level. Three weeks before her visit, on June 26, 2003, De Guzman claimed that her depression had been in remission for three years until the previ*208ous month; however, on June 30, 2003, she claimed that she “has had depression for the past several months” and was “currently applying for disability based on her depression.”6 As Dr. Popanz’s diagnosis “was premised on [De Guzman’s] own subjective complaints, which the ALJ had already properly discounted” based on inconsistencies, the ALJ proffered specific and legitimate reasons for discounting the diagnosis.
Instead of crediting Dr. Popanz’s opinion, the ALJ credited the Disability Determination Services (“DDS”) psychiatric reviewer’s assessment of De Guzman’s medical history. The DDS reviewer deemed De Guzman’s depression “Not Severe” based on “significant credibility problems” and “significant inconsistencies” between Dr. Popanz’s report and other medical evidence in the file. For example, although she had alleged severe depression when applying for disability benefits in 1996, she returned to full-time work for several years. Moreover, Dr. Popanz’s report failed to describe “full symptoms” for De Guzman’s alleged disorders, and her previous records made “no mention of anxiety, panic attacks, or agoraphobia.” He therefore concluded that the “primary care findings regarding depression are not particularly impressive, and certainly are not consistent with the degree of ... restrictions alleged.”
“In order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record.” Van Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir.1996). Here the DDS reviewer identified several legitimate reasons for discounting Dr. Po-panz’s diagnosis, including conflicts with the medical record and inconsistent statements. The ALJ properly gave greater weight to the DDS reviewer’s assessment, which was based on De Guzman’s cumulative medical records, rather than Dr. Po-panz’s diagnosis, which was based on a single interview. See Soc. Sec. Rui. 96-6p.
C
In May 2005, Dr. Vaught completed a physical capacities evaluation form that stated that De Guzman could sit for thirty minutes at a time for a total of two hours per day; stand for forty-five minutes at a time for a total of two hours per day; and walk for five minutes per day. According to Dr. Vaught, De Guzman could never do any lifting, carrying, pushing, pulling, bending, squatting, kneeling, crawling, or climbing ladders because “all activities cause pain in [her] neck at [her] prior surgical site.”
The ALJ refused to accord any weight to the form because it did not “indicate any measuring of effort or give[] a description of what activities or movements were actually done ... to determine the capacity found therein.” Moreover, the “limitations are not supported by the medical evidence of record and are out of proportion to any findings within [her] treatment notes.” De Guzman’s only response *209is to demand that the ALJ “recontact [Dr. Vaught] to determine the basis for her opinion.” The ALJ is under no such obligation and is free to reject “check-off reports that d[o] not contain any explanation of the bases of their conclusions.” Crane v. Shalala, 76 F.3d 251, 253 (9th Cir.1996).
Ill
For the foregoing reasons, the district court’s decision affirming the Commissioner’s denial of De Guzman’s application is
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. De Guzman and her lay witnesses reported that her husband did most of the household chores, including all the shopping and cooking. Yet, the ALJ noted that her husband had been on disability for a long time. It is unclear whether the ALJ's incredulity can be ascribed to her claim of disability or his, so we do not count this potential inconsistency against her.
. De Guzman had unsuccessfully applied for disability benefits back in 1997 but represented on her 2002 application that "no previous application has been filed with the Social Security Administration by or for” her.
. These exercises included “tandem walking and standing,” "forward lunges,” and “wall squats.”
. The ALJ inadvertently conflated the names of two of De Guzman’s treating physicians, Dr. Mirza and Dr. McCarthy.
. The ALJ also cited Dr. Mirza’s refusal to fill out the physical capacities evaluation as evidence that he was not comfortable supporting De Guzman’s disability claim. However, it is unclear from the record why he did not fill out the paperwork, as he was not even present at the visit. Although we agree that this inference is not a clear and convincing reason to discredit Dr. Mirza’s opinion, it was harmless error in light of the other reasons the ALJ cited. See Carmickle, 533 F.3d at 1162.
. At that visit, she requested and was prescribed Paxil. The ALJ noted that other than this prescription, “the claimant has sought no formal mental health treatment” “[A]n unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment” can cast doubt on the sincerity of a claimant's subjective complaints. Fair, 885 F.2d at 603. However, in the case of a mental health disorder, failure to seek treatment may be an unfortunate result of the disorder. See Van Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.1996). The ALJ improperly relied upon this factor in discounting Dr. Popanz’s opinion, but this error was "inconsequential to the ultimate nondisability determination.” Stout v. Comm’r Soc. Sec., 454 F.3d 1050, 1055 (9th Cir.2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470859/ | BERZON, Circuit Judge,
dissenting:
I respectfully dissent from the majority’s decision. The ALJ based his decision to deny petitioner De Guzman’s disability benefits on making an adverse credibility determination and rejecting a treating source’s medical opinion. The ALJ’s reasoning, however, is not supported by substantial evidence in the record. I would reverse and remand for calculation of disability benefits.
1. An ALJ may look to a claimant’s daily activities as a factor in evaluating her credibility. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996). At the same, “[t]he Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). Furthermore, that “[sjymptoms ... may worsen or improve with time, ... may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms.” Soc. Sec. Rui. 96-7p. So the ALJ must examine the record to determine whether there are explanations for variations in the claimant’s descriptions of his or her symptoms. Id.
Here, the ALJ deemed De Guzman not credible because he found that she had contradicted herself in her descriptions of her daily activities, particularly when De Guzman had said that she “stays in bed all day because of pain.” He contrasted that statement with her alleged ability to clean, read, watch television, visit family and friends, and take public transportation. These statements, however, were separated by months, during which De Guzman described her pain as “lately ... getting worse”; lost her job because of illness; and was described by her aunt and friend as “not the same as before.” It was unreasonable for the ALJ not to have taken account of De Guzman’s changing condition at the times she described her daily activities.
The ALJ also deemed De Guzman not credible because he found that her reported activities were inconsistent with her alleged functional limitations. Most of the activities she described — reading, watching television, visiting friends and family, and riding on public transportation — were “so undemanding that they cannot be said to bear a meaningful relationship to the activities of the workplace,” and therefore were not a proper basis for discrediting De Guzman. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.2007). Her other activities, such as occasional cooking and cleaning for up to an hour, also do not transfer to the workplace, because of her frequent need for rest periods. Moreover, “disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998). Thus, the ALJ erred when he found De Guzman’s statements about her daily activities inconsistent.
The ALJ also deemed De Guzman not credible in part because he found that her symptom testimony was not corroborated by medical evidence. Most troubling is the ALJ’s conclusion that “the claimant’s *210insistence on using a walker and a cane is based on her own subjective complaints. I do not find that the claimant had a severe knee impairment.”
The record as a whole supports De Guzman’s need for a cane and a walker in order to prevent falling when walking more than a short distance. Dr. Sohail Mirza prescribed De Guzman a cane in 2004 because she had been falling frequently on account of her myelopathy. Yet even after De Guzman’s surgery, Dr. Mir-za, Dr. Meridale Vaught, attending physician Dr. Joseph Merrill, Dr. Lisa Chew, and physician assistant Patrick Dalessio all recommended that De Guzman continue using a cane and walker in order to prevent falling. Even though the physicians could not determine the etiology of De Guzman’s falls, they nonetheless prescribed the cane and walker. Further, PA Dalessio noted in 2005 that De Guzman “still display[ed] some signs of myelopa-thy.” The ALJ unreasonably substituted his opinion for those of many of De Guzman’s treating and examining physicians.
As the vocational expert testified in the second hearing before the ALJ, the need to use a cane or walker alone would prevent De Guzman from engaging in her past relevant work, requiring a finding of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201.04, 202.04 (defining as disabled those of advanced age with limited education who are unable to return to their previous work). De Guzman’s need for a cane and walker alone is sufficient to establish her disability.
2. The ALJ further erred when he rejected the medical opinion of De Guzman’s treating physician, Dr. Sohail Mirza.
Dr. Mirza, the treating physician who performed cervical surgery on De Guzman in May 2004, wrote on October 2004 in a follow-up that De Guzman would be unable to work for one year after surgery with “permanent limits afterward” and would have “permanent limits on bending, lifting, carrying.” Thus, the petitioner’s regularly treating physician handwrote the phrase “permanent limits” twice on a form that did not require or even suggest that locution. Dr. Mirza’s opinion was brief but emphatic. It is true that even De Guzman described her surgery as largely successful and her remaining pain significantly reduced. But, as physician assistant Patrick Dalessio noted in June 2005, she “still displays some signs of myelopathy.” There is nothing contradictory about being subject to “permanent limits” and “progressing well” after surgery.
Dr. Mirza’s opinion here was consistent with her other medical findings in the course of her treatment of De Guzman. See Orn, 495 F.3d at 634 (“Consistency does not require similarity in findings over time despite a claimant’s evolving medical status.”). The permanent limits that Dr. Mirza described accord with De Guzman’s testimony and other medical records showing an ability to perform some daily activities but not a full day of work. The limits are illustrated by De Guzman’s stated need and repeated prescription for a cane and walker. Because the ALJ should not have rejected De Guzman’s testimony, and because the ALJ should have accepted Dr. Mirza’s opinion, a finding of disability is warranted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470862/ | MEMORANDUM **
Daniel Brink (“Brink”) appeals the denial of his application for Supplemental Security Income benefits. The parties are familiar with the facts, which we repeat here only to the extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and reverse.
We review the Commissioner of Social Security’s (“the Commissioner’s”) denial of benefits de novo. Gillett-Netting v. Barnhart, 371 F.3d 593, 595 (9th Cir.2004). We will affirm the Commissioner’s decision if it is supported by substantial evidence and applies the correct legal standards. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004).
A hypothetical question posed to a vocational expert must “include all of the claimant’s functional limitations, both physical and mental.” Flores v. Shalala, 49 F.3d 562, 570 (9th Cir.1995). Here, the administrative law judge (“ALJ”) accepted medical evidence that Brink has moderate difficulty maintaining concentration, persistence, or pace. However, the ALJ’s initial hypothetical question to the vocational expert referenced only “simple, repetitive work,” without including limitations on concentration, persistence or pace. This was error.
The Commissioner’s contention that the phrase “simple, repetitive work” encompasses difficulties with concentration, persistence, or pace is not persuasive. Indeed, repetitive, assembly-line work of the type described by the expert might well require extensive focus or speed. That the ALJ did not equate “simple, repetitive work” with work requiring concentration, persistence, or pace, is evinced by his subsequent hypothetical question incorporating “moderate to marked attention and concentration deficits.” When the ALJ asked whether a claimant with moderate to marked attention and concentration deficits would be able to perform the simple, repetitive work described earlier, the vocational expert responded in the negative.
In Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir.2008), we held that an “assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with the restrictions identified in the medical testimony.” Id. at 1174. The medical testimony in Stubbs-Daniel-son, however, did not establish any limitations in concentration, persistence, or pace. Here, in contrast, the medical evidence establishes, as the ALJ accepted, that Brink does have difficulties with concentration, persistence, or pace. Stubbs-Dan-ielson, therefore, is inapposite.
Although the ALJ accepted that Brink has moderate difficulty with concentration, persistence, or pace, he nevertheless concluded, contrary to the vocational expert’s testimony, that Brink can perform certain light work. This conclusion was based on an incomplete hypothetical question, and is not supported by substantial evidence. The hypothetical question to the vocational expert should have included not only the limitation to “simple, repetitive work,” but also Brink’s moderate limitations in concentration, persistence, or pace.
Accordingly, we remand to the district court to remand to the Commissioner so that the ALJ can clarify his hypothetical and determine whether Brink is able to *213perform gainful employment in the national economy. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.2004) (“the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation”) (internal quotation marks omitted).
REVERSED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470866/ | MEMORANDUM **
Daniel Keating-Traynor appeals from the district court’s order dismissing his Fair Labor Standards Act (“FLSA”) action seeking overtime compensation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir.2007). We affirm.
The district court properly dismissed the action as barred by the applicable statute of limitations because Keating-Tray-nor filed the action more than three years after his FLSA claim accrued in May 2005. See 29 U.S.C. § 255(a) (setting forth a three-year limitations period for an alleged willful violation of the FLSA); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.1993) (explaining that the statute of limitations for an FLSA claim accrues “the day the employee’s paycheck is normally issued, but isn’t”).
Because Keating-Traynor cannot state a claim for violation of the FLSA, the district court properly dismissed the civil conspiracy claim. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 208 (9th Cir. 1991) (holding that because the underlying cause of action was barred by the applicable statute of limitations, “the civil conspiracy claim also must fail”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471137/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wanda Scott appeals the district court’s order denying her motion for waiver of PACER fees. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Scott v. South Carolina, No. 6:08-cv-01684-GRA, 2009 WL 750419 (D.S.C. Mar. 18, 2009). We dispense with oral argument because the facts and legal contentions are adequately *865presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470853/ | MEMORANDUM **
Kenneth G. Williams appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations under the Eighth and Fourteenth Amendments. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state a claim, Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per cu-riam), its summary judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004), and its dismissal for failure to exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and review for clear error its factual determinations, id. We affirm in part, vacate in part, and remand.
The district court properly dismissed Williams’s conspiracy and equal protection claims against defendants Inland Cardiology and Nadar for failure to state a claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982) (“Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”).
The district court properly granted summary judgment for Inland Cardiology and Nadar on Williams’s Eighth Amendment claims because Williams failed to raise a triable issue as to whether the treatment provided was “medically unacceptable under the circumstances” and that defendants “chose this course in conscious disregard of an excessive risk to his health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996).
The district court properly dismissed Williams’s claims against the prison defendants because he did not complete the prison grievance process prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and requires adherence to administrative procedural rules); see also McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (requiring inmates to exhaust administrative remedies prior to filing suit in federal court). However, we vacate the judgment with respect to these claims and remand for dismissal without prejudice. See Wyatt, 315 F.3d at 1120 (providing that the proper remedy for non-exhaustion is dismissal without prejudice).
We grant the prison defendants’ request for judicial notice.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470855/ | MEMORANDUM **
Juan Carlos Ledesma-Lozano appeals from the 62-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Ledesma-Lozano contends that the district court erred at sentencing by: 1) failing to apply the parsimony principle as required by 18 U.S.C. § 3553; 2) failing *199to consider all of the § 3553(a) factors and giving undue weight to the sentencing Guidelines range; and 3) failing to provide an adequate record to support the sentence. Ledesma-Lozano further contends that the sentence is substantively unreasonable. The district court properly considered the § 3553(a) factors and adequately explained the sentence selected. Accordingly, the district court did not pro-eedurally err at sentencing. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Moreover, in light of the totality of the circumstances, the sentence is substantively reasonable. See id.; see also United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (“A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals”).
We remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470857/ | MEMORANDUM *
Maria Cecilia Sy Chico appeals her conviction and sentence for two counts of subscribing to false tax returns, contending that she was deprived of the opportunity for fair consideration of her defense by the jury. Chico also contends the district court committed plain error by imposing a sentence without stating any reasons, contrary to the requirements of 18 U.S.C. § 3553(c). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm in part, vacate in part, and remand for resentencing.
The district court did not abuse its discretion in denying Chico’s motion to allow jurors to take notes. See United States v. Baker, 10 F.3d 1374, 1403 (9th Cir.1993) (a district court does not abuse its discretion in denying juror note taking when it is concerned that allowing jurors to take notes would distract them from paying attention to the evidence).
While the district court may have abused its discretion in limiting cross-examination, it was not an error that merits reversal because it was not prejudicial to Chico. See, e.g., Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004).
Further, the district court did not abuse its discretion in participating in the trial by briefly questioning Chico. The district court’s questions merely clarified whether she had attended the University of Santo Thomas even though, as she had previously testified, she had not received a bachelor’s degree from that University. Therefore, the record does not show actual bias or an abiding impression that the jury perceived an appearance of advocacy or partiality. See United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988).
Chico argues that the cumulative effect of these alleged errors caused her prejudice. We disagree with the allegation that they are errors. Further, even if errors, they did not more than likely affect the jury’s verdict or its ability to judge the evidence fairly. Therefore, a reversal is not warranted. See United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993).
*201However, the district court committed plain error by imposing a sentence without adequate explanation, contrary to the requirements of 18 U.S.C. § 3553(c). Under a plain error standard, relief is not warranted unless there is: (1) an error; (2) that was plain; and (3) that affected the defendant’s substantial rights. See Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Even if these conditions are met, reversal is discretionary and will be granted only if the errors “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Dallman, 533 F.3d 755, 761 (9th Cir.2008) (quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc)).
Section 3553(c) requires the court to state, at the time of sentencing, “the reasons for its imposition of the particular sentence.... ” “The sentencing judge should set forth enough [explanation] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his decisionmaking authority.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). The district court failed to give any reasons for the imposition of its sentence. That is error, and it is plain error. We are unable to determine whether Chico’s sentence affected Chico’s substantial rights, because the district court failed to explain how the facts in this record (to be analyzed by applying the § 3553 factors) were analyzed. Inadequate explanation effectively deprives the defendant of the right to have his or her sentence meaningfully reviewed. Such deprivation seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Waknine, 543 F.3d 546, 554-55 (9th Cir.2008) (finding plain error where the same district court failed to give any reasons and failed to consider the § 3553(a) factors before imposing the sentence). We therefore vacate the sentence and remand for resen-tencing so the district court can adequately explain its reasoning in the imposition of the sentence.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470860/ | MEMORANDUM *
Leticia De Guzman appeals the district court’s decision upholding the Social Security Administration (“SSA”) Commissioner’s denial of her application for disability insurance and supplemental social security income benefits. Because the parties are familiar with the facts of this case, we recount them here only as necessary.
De Guzman contends that the administrative law judge (“ALJ”) erred in making an adverse credibility determination and rejecting the opinions of three of her doctors. We review the district court’s order affirming the Commissioner’s denial of benefits de novo to determine whether such denial “was supported by substantial evidence and a correct application of the law.” Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.1995). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005).
I
De Guzman challenges the ALJ’s conclusion that she was not entirely credible because of inconsistencies between her reported activities and her alleged limitations, as well as a lack of objective medical evidence to corroborate her symptoms.
A
De Guzman reported wildly varying activity levels over the course of several months that were inconsistent with her claims of chronic, debilitating pain. On January 27, 2003, Dr. Luis Wainstein performed a disability evaluation. She told him that she had experienced “abdominal pain ever since 1995 when she underwent abdominal surgery,” as well as daily headaches that “started shortly after her abdominal surgery.” Nevertheless, she could still work as a hotel housekeeper, “walk 4-5 blocks going to downtown Seattle ... without discomfort,” “clean the bathroom and use[ ] the vacuum cleaner in the apartment,” and wash dishes. When he asked her how she was able to work despite her pain, she told him that “lately this has been getting worse.” However, Dr. Wainstein could not determine a medical explanation for the “aggravation of her symptoms.” Shortly after this visit, De *204Guzman had a chest x-ray and CT scan with unremarkable findings.
After her first disability claim was denied, her symptoms suddenly took a turn for the worse. She filed a request for reconsideration on March 26, 2003, asserting that she was “always very sick” and could not work “due to the pain I always feel in my head, stomach, and chest.” She claimed that she could not “do any house chores because of pain and fatigue” and was “homebound,” “staying] in bed all day because of pain” in her stomach, head, and chest. Three months later, in June 2003, she acknowledged in her daily activities questionnaire that since the onset of her alleged disability, she did light housework such as a “little dusting and sweeping” and used public transportation to go out with her husband.1
A claimant’s “prior statements inconsistent with [her] claim of pain ... may be properly taken into account in determining whether or not [her] claim of disabling pain should be believed.” Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir.1989). It is certainly true that “[s]ymptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time, and this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms.” Soc. Sec. Rul. 96-7p. Hence, the ALJ may look to the case record to find “explanations for any variations in the individual’s statements about symptoms and their effects.” Id. Here there was no objective medical evidence to account for De Guzman’s fluctuating activity levels over this six-month period. While the lack of such evidence is “only one factor that the adjudicator must consider in assessing an individual’s credibility,” id., the record as a whole supports the ALJ’s conclusion that she was not entirely credible.
When she first applied for disability benefits in 2002,2 she alleged post-operative stomach pain and claimed that she “became unable to work because of [her] disabling condition on December 1, 2002.” However, she admittedly continued working as a hotel housekeeper until January 29, 2003. According to the ALJ, that De Guzman continued to work despite her “alleged continued difficulties” was “[m]ost damaging to [her] credibility.” The ALJ properly relied upon discrepancies in her 2002 application in making his adverse credibility determination. See Soc. Sec. Rul. 96-7p (noting that in assessing credibility, the ALJ “must also look at statements the individual made to SSA at each prior step of the administrative review process and in connection with any concurrent claim or, when available, prior claims for disability benefits”).
B
In making the adverse credibility determination, the ALJ also cited De Guzman’s routine and conservative treatment as well as “absent or only mild objective findings and observation of no major difficulties with functioning during the bulk of her examinations.”
*205Although it is true that De Guzman had major surgery to treat her cervical condition, she herself was “very pleased with her increasing mobility, her lack of pain, and her lack of falls,” and she now admits that “the surgery was successful.” Dr. Johnston observed that she recovered “amazingly well” from the operation, with reduced neck pain that was “mild” and “well controlled with Tylenol.” Her films showed normal spinal alignment, and her doctors were “quite happy” with her outcome.
During her post-operative follow-up visits, she denied having dizziness or light-headedness except at one visit, when she said she had experienced dizziness on and off. However, it had resolved itself by the next visit. She did not report any dizziness to her doctors subsequent to September 2004, though in May 2005 she testified at the first hearing that she still experienced dizziness brought on “[w]hen I get up and also when I clean, like cleaning the bathroom.” Though she testified both in May 2005 and December 2006 that she took daily naps, she attributed them to fatigue rather than dizziness.
She still occasionally reported having headaches associated with a bony mass on her left frontal bone, which was removed in December 2005. By January 2006, she was “doing well” and “[djenying any pain,” though her head and neck pain had apparently returned by the time of her second hearing in December 2006.
Although De Guzman reported a history of leg weakness, knee pain, balance issues, and a history of falling, her x-rays were normal, and her treating physician, Dr. Christine Johnston, noted that her “current constellation of symptoms is not necessarily consistent with any clear neurological process.” After her third fall in March 2004, De Guzman visited the emergency room and “asked [the doctor] to assess [her] for [a] walker.” The doctor complied with this request, and she was fitted with a walker at this time.
In June 2004, a month after her cervical spine surgery, Dr. Johnston noted that “[p]ostoperatively, she is doing amazingly well.... She has not had any falls since the surgery. She has continued to use a walker but is at times able to walk on her own.” By July 2004, she had “regained much of the strength in her legs and [was] able to walk well without use of a walker.” According to her physical therapist, she was “making an excellent recovery.” By August 2004, she reported that “she has been walking in Chinatown and doing her [physical therapy] exercises without difficulty.” 3 Her treating physician, Dr. So-hail Mirza, noted in October 2004 that “it is unlikely her left knee pain is directly related to her cervical problem.”
She did not report falling again until a year later, after her one-year work restriction had ended. Although De Guzman testified at her first hearing that only her left knee gave her problems, in August 2005, she reported that her “right knee gave out, causing her to fall to the ground.” Dr. Vaught reported that there were two falls that month: “[o]ne while hurrying in the house and only using [a] cane” and “[o]ne while walking outside looking up and tripped over tree trunk.” In her assessment, Dr. Vaught noted that the falls had an “unclear etiology,” but because De Guzman had fallen while using a cane, she asked her to use a walker until she could see a physical therapist for “gait *206training” and “recommendations regarding safety.”
In September 2005, a physical therapist assessed De Guzman and determined that she did “not test as a fall risk on the Berg Balance scale.” Furthermore, De Guzman’s knees displayed full muscle strength, full range of motion, and normal alignment. Hence, the physical therapist was “unsure at this time as to why she is falling because objectively she is doing quite well actually.” Because of De Guzman’s recent falls, the physical therapist thought that she “would benefit from using walker vs. cane if fatigued or outside the home” and “discussed importance of attending to environment more closely.” In October 2005, Dr. Vaught reported no falls since her previous visit; she noted that De Guzman “tried to be more careful and pay more attention when walking and th[ought] this has helped.”
“[C]onfliet[s] between a [claimant’s] ... subjective complaints and the objective medical evidence in the record” can constitute “specific and substantial reasons that undermine[ ] ... credibility.” Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999). Although De Guzman testified about headaches, neck pain, dizziness, and knee problems, the objective medical record did not support these subjective complaints. After successful spinal surgery, her condition improved markedly and was well controlled to the point that she needed only yearly follow-ups. Furthermore, her most recently documented falls, which occurred four years ago, resulted from inattention rather than an underlying pathology, as evidenced by the fact that her falling improved after she “tried to be more careful and pay more attention when walking.” It was therefore not unreasonable for the ALJ to conclude that the recommendation to use a cane or walker was merely a precaution based on her subjective complaints rather than a clear endorsement or corroboration of her complaints.
C
The ALJ also referred to De Guzman’s lack of cooperation at examinations as a further reason to disbelieve her subjective complaints. However, the only episode in which she was not fully cooperative was her consultative examination with Dr. Timothy Popanz, in which she “appeared irritable and agitated.” She appeared to have been cooperative during the dozens of other examinations she received from the many doctors she visited. While the ALJ’s reliance on this one episode is not a clear and convincing reason to reject her testimony, it was harmless error in light of the other specific and cogent reasons the ALJ cited in support of his adverse credibility determination. See Carmickle v. Comm’r Soc. See. Admin., 533 F.3d 1155, 1162 (9th Cir.2008).
D
Because the ALJ pointed to “specific, clear and convincing reasons” for disbelieving De Guzman, substantial evidence supports his adverse credibility determination. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996).
II
De Guzman contends that the ALJ did not give sufficient reasons for discrediting the opinions of treating physician Dr. So-hail Mirza, examining psychologist Timothy Popanz, Ph.D., and treating physician Amy Vaught.
A
On October 8, 2004, Ms. De Guzman apparently requested and received a form letter from Dr. Mirza (addressed “To *207Whom It May Concern”) stating that “[t]he patient ... [m]ay not return to work/school” for one year from the date of surgery “and [has] permanent limits on bending, lifting, [and] carrying.” The ALJ rejected this opinion on grounds that “prohibiting the' claimant from working for a year after her cervical surgery grossly exaggerates a reasonable recovery time for such a surgery.” 4
In Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002), we clarified that when evaluating conflicting medical opinions, the “ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Indeed, the ALJ refused to accept Dr. Mirza’s brief, conclusory, and nonspecific statement that Ms. De Guzman has “permanent limits,” which conflicted with his June 2004 report that Ms. De Guzman was “progressing well,” along with Dr. Vaught’s November 2004 report that her cervical pain was merely “mild.” These specific, legitimate reasons for discounting Dr. Mirza’s restrictions constituted substantial evidence.
De Guzman contends that the ALJ was obligated to investigate further what Dr. Mirza meant by “permanent limits.” At the first hearing in 2005, the ALJ asked De Guzman’s counsel to “ask [Dr. Mirza] to be more specific about ‘permanent limits.’ ” De Guzman’s counsel agreed, and the ALJ granted her thirty days to obtain the information, at which time she could “make any additional comments.” Although counsel sent Dr. Mirza a physical capacities evaluation form to fill out, for some reason he did not comply with her request, and counsel did not follow up after Dr. Mirza left Harborview Medical Center.5 The ALJ satisfied his duty to develop the record when he “voiced his concern to Appellant and her counsel, requested an additional inquiry into the basis for Dr. [Mirza’s] opinions and explained that he would keep the record open so that it could be supplemented by the responses ----” Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir.1998).
B
On July 14, 2003, Dr. Popanz conducted a one-time “diagnostic interview and mental status exam” in which he concluded that De Guzman suffered from depression, dysthymic disorder, and panic disorder with agoraphobia.
The ALJ discounted Dr. Popanz’s opinion because it “provided little detail regarding specific diagnostic criteria to support [her] diagnoses.” The ALJ noted that Dr. Popanz’s conclusions were “based on a subjective report of symptoms and contrast sharply with the other psychological evidence in the record.” In particular, the ALJ pointed to inconsistencies in De Guzman’s reports of depression prior to the examination. Her husband reported an onset date of 1995, yet she was able to work for many years thereafter at a substantial gainful level. Three weeks before her visit, on June 26, 2003, De Guzman claimed that her depression had been in remission for three years until the previ*208ous month; however, on June 30, 2003, she claimed that she “has had depression for the past several months” and was “currently applying for disability based on her depression.”6 As Dr. Popanz’s diagnosis “was premised on [De Guzman’s] own subjective complaints, which the ALJ had already properly discounted” based on inconsistencies, the ALJ proffered specific and legitimate reasons for discounting the diagnosis.
Instead of crediting Dr. Popanz’s opinion, the ALJ credited the Disability Determination Services (“DDS”) psychiatric reviewer’s assessment of De Guzman’s medical history. The DDS reviewer deemed De Guzman’s depression “Not Severe” based on “significant credibility problems” and “significant inconsistencies” between Dr. Popanz’s report and other medical evidence in the file. For example, although she had alleged severe depression when applying for disability benefits in 1996, she returned to full-time work for several years. Moreover, Dr. Popanz’s report failed to describe “full symptoms” for De Guzman’s alleged disorders, and her previous records made “no mention of anxiety, panic attacks, or agoraphobia.” He therefore concluded that the “primary care findings regarding depression are not particularly impressive, and certainly are not consistent with the degree of ... restrictions alleged.”
“In order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record.” Van Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir.1996). Here the DDS reviewer identified several legitimate reasons for discounting Dr. Po-panz’s diagnosis, including conflicts with the medical record and inconsistent statements. The ALJ properly gave greater weight to the DDS reviewer’s assessment, which was based on De Guzman’s cumulative medical records, rather than Dr. Po-panz’s diagnosis, which was based on a single interview. See Soc. Sec. Rui. 96-6p.
C
In May 2005, Dr. Vaught completed a physical capacities evaluation form that stated that De Guzman could sit for thirty minutes at a time for a total of two hours per day; stand for forty-five minutes at a time for a total of two hours per day; and walk for five minutes per day. According to Dr. Vaught, De Guzman could never do any lifting, carrying, pushing, pulling, bending, squatting, kneeling, crawling, or climbing ladders because “all activities cause pain in [her] neck at [her] prior surgical site.”
The ALJ refused to accord any weight to the form because it did not “indicate any measuring of effort or give[] a description of what activities or movements were actually done ... to determine the capacity found therein.” Moreover, the “limitations are not supported by the medical evidence of record and are out of proportion to any findings within [her] treatment notes.” De Guzman’s only response *209is to demand that the ALJ “recontact [Dr. Vaught] to determine the basis for her opinion.” The ALJ is under no such obligation and is free to reject “check-off reports that d[o] not contain any explanation of the bases of their conclusions.” Crane v. Shalala, 76 F.3d 251, 253 (9th Cir.1996).
Ill
For the foregoing reasons, the district court’s decision affirming the Commissioner’s denial of De Guzman’s application is
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. De Guzman and her lay witnesses reported that her husband did most of the household chores, including all the shopping and cooking. Yet, the ALJ noted that her husband had been on disability for a long time. It is unclear whether the ALJ's incredulity can be ascribed to her claim of disability or his, so we do not count this potential inconsistency against her.
. De Guzman had unsuccessfully applied for disability benefits back in 1997 but represented on her 2002 application that "no previous application has been filed with the Social Security Administration by or for” her.
. These exercises included “tandem walking and standing,” "forward lunges,” and “wall squats.”
. The ALJ inadvertently conflated the names of two of De Guzman’s treating physicians, Dr. Mirza and Dr. McCarthy.
. The ALJ also cited Dr. Mirza’s refusal to fill out the physical capacities evaluation as evidence that he was not comfortable supporting De Guzman’s disability claim. However, it is unclear from the record why he did not fill out the paperwork, as he was not even present at the visit. Although we agree that this inference is not a clear and convincing reason to discredit Dr. Mirza’s opinion, it was harmless error in light of the other reasons the ALJ cited. See Carmickle, 533 F.3d at 1162.
. At that visit, she requested and was prescribed Paxil. The ALJ noted that other than this prescription, “the claimant has sought no formal mental health treatment” “[A]n unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment” can cast doubt on the sincerity of a claimant's subjective complaints. Fair, 885 F.2d at 603. However, in the case of a mental health disorder, failure to seek treatment may be an unfortunate result of the disorder. See Van Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.1996). The ALJ improperly relied upon this factor in discounting Dr. Popanz’s opinion, but this error was "inconsequential to the ultimate nondisability determination.” Stout v. Comm’r Soc. Sec., 454 F.3d 1050, 1055 (9th Cir.2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470861/ | BERZON, Circuit Judge,
dissenting:
I respectfully dissent from the majority’s decision. The ALJ based his decision to deny petitioner De Guzman’s disability benefits on making an adverse credibility determination and rejecting a treating source’s medical opinion. The ALJ’s reasoning, however, is not supported by substantial evidence in the record. I would reverse and remand for calculation of disability benefits.
1. An ALJ may look to a claimant’s daily activities as a factor in evaluating her credibility. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996). At the same, “[t]he Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). Furthermore, that “[sjymptoms ... may worsen or improve with time, ... may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms.” Soc. Sec. Rui. 96-7p. So the ALJ must examine the record to determine whether there are explanations for variations in the claimant’s descriptions of his or her symptoms. Id.
Here, the ALJ deemed De Guzman not credible because he found that she had contradicted herself in her descriptions of her daily activities, particularly when De Guzman had said that she “stays in bed all day because of pain.” He contrasted that statement with her alleged ability to clean, read, watch television, visit family and friends, and take public transportation. These statements, however, were separated by months, during which De Guzman described her pain as “lately ... getting worse”; lost her job because of illness; and was described by her aunt and friend as “not the same as before.” It was unreasonable for the ALJ not to have taken account of De Guzman’s changing condition at the times she described her daily activities.
The ALJ also deemed De Guzman not credible because he found that her reported activities were inconsistent with her alleged functional limitations. Most of the activities she described — reading, watching television, visiting friends and family, and riding on public transportation — were “so undemanding that they cannot be said to bear a meaningful relationship to the activities of the workplace,” and therefore were not a proper basis for discrediting De Guzman. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.2007). Her other activities, such as occasional cooking and cleaning for up to an hour, also do not transfer to the workplace, because of her frequent need for rest periods. Moreover, “disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998). Thus, the ALJ erred when he found De Guzman’s statements about her daily activities inconsistent.
The ALJ also deemed De Guzman not credible in part because he found that her symptom testimony was not corroborated by medical evidence. Most troubling is the ALJ’s conclusion that “the claimant’s *210insistence on using a walker and a cane is based on her own subjective complaints. I do not find that the claimant had a severe knee impairment.”
The record as a whole supports De Guzman’s need for a cane and a walker in order to prevent falling when walking more than a short distance. Dr. Sohail Mirza prescribed De Guzman a cane in 2004 because she had been falling frequently on account of her myelopathy. Yet even after De Guzman’s surgery, Dr. Mir-za, Dr. Meridale Vaught, attending physician Dr. Joseph Merrill, Dr. Lisa Chew, and physician assistant Patrick Dalessio all recommended that De Guzman continue using a cane and walker in order to prevent falling. Even though the physicians could not determine the etiology of De Guzman’s falls, they nonetheless prescribed the cane and walker. Further, PA Dalessio noted in 2005 that De Guzman “still display[ed] some signs of myelopa-thy.” The ALJ unreasonably substituted his opinion for those of many of De Guzman’s treating and examining physicians.
As the vocational expert testified in the second hearing before the ALJ, the need to use a cane or walker alone would prevent De Guzman from engaging in her past relevant work, requiring a finding of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201.04, 202.04 (defining as disabled those of advanced age with limited education who are unable to return to their previous work). De Guzman’s need for a cane and walker alone is sufficient to establish her disability.
2. The ALJ further erred when he rejected the medical opinion of De Guzman’s treating physician, Dr. Sohail Mirza.
Dr. Mirza, the treating physician who performed cervical surgery on De Guzman in May 2004, wrote on October 2004 in a follow-up that De Guzman would be unable to work for one year after surgery with “permanent limits afterward” and would have “permanent limits on bending, lifting, carrying.” Thus, the petitioner’s regularly treating physician handwrote the phrase “permanent limits” twice on a form that did not require or even suggest that locution. Dr. Mirza’s opinion was brief but emphatic. It is true that even De Guzman described her surgery as largely successful and her remaining pain significantly reduced. But, as physician assistant Patrick Dalessio noted in June 2005, she “still displays some signs of myelopathy.” There is nothing contradictory about being subject to “permanent limits” and “progressing well” after surgery.
Dr. Mirza’s opinion here was consistent with her other medical findings in the course of her treatment of De Guzman. See Orn, 495 F.3d at 634 (“Consistency does not require similarity in findings over time despite a claimant’s evolving medical status.”). The permanent limits that Dr. Mirza described accord with De Guzman’s testimony and other medical records showing an ability to perform some daily activities but not a full day of work. The limits are illustrated by De Guzman’s stated need and repeated prescription for a cane and walker. Because the ALJ should not have rejected De Guzman’s testimony, and because the ALJ should have accepted Dr. Mirza’s opinion, a finding of disability is warranted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470865/ | MEMORANDUM *
Barry Armbrister appeals his conviction and sentencing for receipt of child pornography under 18 U.S.C. § 2252A(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and now affirm. The facts are well-known to the parties and need not be addressed here.
Armbrister asserts that the district court erred by vacating his possession con*214viction rather than his receipt conviction under United States v. Davenport, 519 F.3d 940 (9th Cir.2008). Today, in United States v. Hector, 577 F.3d 1099 (9th Cir. 2009), we hold that where the defendant objects to the government’s motion to vacate, the district court is required to use its discretion in determining which conviction to vacate rather than deferring to the prosecutor. However, Armbrister filed a statement of non-objection to the government’s motion to vacate his possession conviction. Accordingly, even after our decision in Hector it was not plain error for the district court to vacate Armbrister’s possession conviction under Federal Rule of Criminal Procedure 48(a). See Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (applying Rule 48(a) post-conviction); United States v. Gonzalez, 58 F.3d 459 (9th Cir.1995) (reversing a district court for denying a Rule 48(a) motion supported by both the defendant and the government); United States v. Garcia-Valenzuela, 232 F.3d 1003 (9th Cir.2000) (noting that both the Supreme Court and this circuit have reserved judgment on whether a consented-to Rule 48(a) motion may ever be denied).
The FBI agent obtaining the search warrant did not behave recklessly or intentionally in failing to mention in the search warrant application that Armbrister was not on probation at the time of the search. In addition, the interview between Arm-brister’s wife and the FBI agent is attenuated enough from the taint of any illegal search to provide an independently adequate basis for the search warrant.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470867/ | MEMORANDUM **
Daniel Keating-Traynor appeals from the district court’s order dismissing his Fair Labor Standards Act (“FLSA”) action seeking overtime compensation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir.2007). We affirm.
The district court properly dismissed the action as barred by the applicable statute of limitations because Keating-Tray-nor filed the action more than three years after his FLSA claim accrued in May 2005. See 29 U.S.C. § 255(a) (setting forth a three-year limitations period for an alleged willful violation of the FLSA); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir.1993) (explaining that the statute of limitations for an FLSA claim accrues “the day the employee’s paycheck is normally issued, but isn’t”).
Because Keating-Traynor cannot state a claim for violation of the FLSA, the district court properly dismissed the civil conspiracy claim. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 208 (9th Cir. 1991) (holding that because the underlying cause of action was barred by the applicable statute of limitations, “the civil conspiracy claim also must fail”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471138/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wanda Scott appeals the district court’s order denying her motion for waiver of PACER fees. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Scott v. South Carolina, No. 6:08-cv-01684-GRA, 2009 WL 750419 (D.S.C. Mar. 18, 2009). We dispense with oral argument because the facts and legal contentions are adequately *865presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470870/ | MEMORANDUM **
Zenaida Reyes appeals from the 16-month sentence imposed following her guilty-plea conviction for bribery in violation of 18 U.S.C. § 201(b)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Reyes contends that the district court failed to resolve factual disputes or otherwise comply with the sentencing requirements of Federal Rule of Criminal Procedure 32 and U.S.S.G. § 6A1.3. These contentions lack merit. See United States v. Montenegro-Rojo, 908 F.2d 425, 429 & n. 3 (9th Cir.1990); see also United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir.2008).
We reject Reyes’ contention that remand is required because the district court procedurally or otherwise erred by considering facts from the pre-sentence report during its 18 U.S.C. § 3553(a) analysis after stating that it would focus on the facts admitted to in the plea agreement. There was no reversible error on this record. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1101 (9th Cir.2005); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).
Reyes also contends that the district court erred in applying a two-level increase in her offense level under U.S.S.G. § 2Cl.l(b)(l). She asserts that the district court was not permitted to consider relevant conduct that occurred outside the United States, and clearly erred in determining that there were two separate incidents of bribery. These contentions fail. See United States v. Kahlon, 38 F.3d 467, 470 (9th Cir.1994); see also United States v. Speelman, 431 F.3d 1226, 1232 (9th Cir.2005).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470872/ | MEMORANDUM **
Ramiro Lopez-Aguirre appeals from his guilty-plea conviction and 65-month sentence imposed for illegal reentry following deportation in violation of 8 U.S.C. § 1326.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Lopez-Aguirre’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470874/ | MEMORANDUM **
David Scott Harrison appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003). We affirm.
The district court properly dismissed Harrison’s action because Harrison has stated no viable due process claim seeking access to the DNA evidence at issue. See Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, — U.S. -, 129 S.Ct. 2308, 2320-22, 174 L.Ed.2d 38 (2009) (holding that plaintiff had no viable procedural due process claim because state’s procedures for post-conviction relief did not transgress recognized principles of fundamental fairness, as well as no substantive due process right to post-conviction access to DNA evidence).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470877/ | WILKEN, District Judge,
dissenting:
I respectfully dissent.
The district court concluded that Drim-mer did not satisfy Rule 23(a)(4)’s requirement that representative parties fairly and adequately protect the interests of the class. The district court based its finding on two factors: “the combination of a personal relationship [and] landlord-tenant relationship” between Drimmer and his attorney, and Drimmer’s “inexplicable disinterest in pursuing all remedies available to him.” However, the court stated that “any one factor would not disqualify Drim-mer.”
Drimmer seeks restitution against WD-40 in the form of a refund of the purchase price of 2000 Flushes. He does not seek recovery of the cost of repairing damage to class members’ toilets resulting from the use of 2000 Flushes. The district court believed that this evinced a conflict between Drimmer and members of the class *222whose toilets had been damaged and who could potentially obtain monetary damages as a result.
Because a UCL claim is equitable in nature, prevailing plaintiffs are generally limited to injunctive relief and restitution; damages cannot be recovered. In re Tobacco II Cases, 46 Cal.4th 298, 312, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). Damages were thus not available to Drimmer in connection with this claim, and he should not be considered an inadequate class representative for deciding not to seek them.
Damages were available in on Drim-mer’s negligence and Song-Beverly Act claims. However, Rule 23(b)(3) permits class certification only if “questions of law or fact common to class members predominate over any questions affecting only individual members.” This predominance requirement prevents Drimmer from pursuing any claim on behalf of class members based on injury in the form of actual damage to class members’ toilets, because doing so would require the introduction of individualized evidence and would preclude class certification under Rule 23(b)(3). In fact, the district court correctly found that class certification was unavailable on Drimmer’s negligence claim because an individualized showing of damages was an element of the claim, and thus Rule 23(b)(3)’s predominance requirement could not be satisfied. Drimmer does not appeal the district court’s decision to deny class certification of the negligence claim.
In contrast to the negligence claim, toilet damage is not an element of the type of Song-Beverly Act claim Drimmer asserts. See Hicks v. Kaufman and Broad Home Corp., 89 Cal.App.4th 908, 918, 107 Cal. Rptr.2d 761 (2001). It was reasonable for Drimmer to believe that seeking compensation for toilet damage in connection with this claim would cause individualized issues to predominate, thereby rendering class certification inappropriate. Drimmer should not be declared an inadequate class representative because he declined to seek a remedy that would defeat class certification.
Nor would Drimmer’s decision prejudice class members whose toilets were damaged. Those class members would not be precluded from pursuing their own negligence or Song-Beverly Act claims for toilet damage because such claims would require the introduction of individualized evidence and thus cannot be asserted in this action. See Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998) (“Res judi-cata (or claim preclusion) bars all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties on the same cause of action.”) (emphasis added).
Because the district court stated that no single factor was sufficient to disqualify Drimmer, it appears that the court would have found Drimmer to be an adequate class representative if it had not taken into account Drimmer’s failure to seek damages for injury to class members’ toilets and, instead, had only considered Drim-mer’s relationship with his attorney. It is also important to note the fact that the attorney is apparently no longer working on this case. Accordingly, I would remand for the district court to conduct a new inquiry on Drimmer’s adequacy as class representative.
Because the majority affirms the district court on the basis of the district court’s adequacy finding, it did not reach the issues of predominance, commonality and superiority. Because I would remand, I would also reach these issues and would find that the district court erred in its analysis of them. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470880/ | MEMORANDUM **
Defendant/Appellant Mauricio Rodriguez (“Rodriguez”) appeals from the final order of the district court denying his motion to dismiss an indictment pursuant to the Double Jeopardy Clause of the Fifth Amendment. Rodriguez was arrested and indicted for felony drug trafficking. During his first trial, Rodriguez moved for a mistrial on the basis of prejudicial testimony and discovery violations. After the district court granted the motion, Rodriguez moved to dismiss the indictment pursuant to Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), which held that a subsequent proceeding may be *224barred by the Fifth Amendment if the government intentionally provokes a mistrial. The district court denied the motion to dismiss without holding an evidentiary hearing, and Rodriguez immediately appealed. The district court retained jurisdiction over the proceeding, despite the notice of appeal, on the ground that the motion to dismiss was frivolous.
We heard the interlocutory appeal and reversed the decision of the district court. See U.S. v. Rodriguez, 229 Fed.Appx. 547 (9th Cir.2007). Holding, inter alia, that “the prosecution potentially had much to gain from a mistrial, and little to lose,” we remanded with instructions that the district court conduct an evidentiary hearing to determine whether the prosecution had goaded the defense into moving for a mistrial. Id. at 549. On remand, the district court conducted an evidentiary hearing, which included lengthy testimony from the lead prosecutor. The district court again denied Rodriguez’s motion to dismiss. Rodriguez now appeals that final order.
We review a denial of a motion to dismiss an indictment on the basis of double jeopardy de novo. See U.S. v. Lun, 944 F.2d 642, 644 (9th Cir.1991). Factual findings with respect to the government’s conduct are reviewed for clear error. U.S. v. Ziskin, 360 F.3d 934, 942 (9th Cir.2003).
Barring retrial pursuant to the Fifth Amendment and Kennedy requires a determination of the prosecutor’s subjective intent at the time of the misconduct. See U.S. v. Hagege, 437 F.3d 943, 951-52 (9th Cir.2006). Intent can be inferred from “the ‘objective facts and circumstances.’” Id. (quoting Kennedy, 456 U.S. at 675, 102 S.Ct. 2083). On remand, we outlined several issues to be explored at the evidentia-ry hearing. These included (1) the prosecutor’s familiarity with the rules set forth in U.S. v. Velarde-Gomez, 269 F.3d 1023 (9th Cir.2001); (2) the prosecutor’s rationale for repeatedly questioning a witness about Rodriguez’s demeanor; and (3) the prosecutor’s justification for eliciting “irrelevant and prejudicial testimony” from another witness. Rodriguez, 229 Fed.Appx. at 549. Additional factors to consider include whether the government objected to the motion for mistrial, whether the government’s case was going badly at the time of the misconduct, and if there was an advantage to be gained by a new trial. U.S. v. Lun, 944 F.2d 642, 644-46 (9th Cir.1991).
On remand, the district court made detailed findings of fact to support its conclusion that the prosecutor did not derail the proceedings intentionally. The government had a strong case, and while the prosecutor may have been aware of Velarde-Gomez and the risk of mistrial created by his aggressive tactics, he did not roll over when Rodriguez moved for mistrial. The district court’s factual findings were not clearly erroneous.1
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. At oral argument, Rodriguez was granted permission to file a supplemental brief to address our recent decision in U.S. v. Paul, 561 F.3d 970 (9th Cir.2009). After consideration of the supplemental briefing, we find Paul distinguishable both on the facts and with respect to the applicable standard of review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470882/ | MEMORANDUM **
The relevant facts are known to the parties and we do not repeat them here, except as necessary to explain our decision.
The district court did not abuse its discretion when it declined to grant Avalos a “minor participant” reduction in offense level under § 3B1.2 of the United States *226Sentencing Guidelines. Based on the record before this Court, it was proper for the district court to conclude that Avalos, as driver of the lookout vehicle, was, as the district court put it, “an integral part” of the illegal alien smuggling operation at issue in this case.
On the question of whether the district court properly calculated Avalos’ criminal history under U.S.S.G. § 4A1.1, however, the record is less clear. Normally, Avalos’ prior offenses would be counted together under § 4A1.1 because there was no intervening arrest between his August 8, 2005 and August 9, 2005 offenses, and because he was sentenced for both offenses on the same day. However, under Application Note 3 of the commentary to § 4A1.2, the district court has authority to grant an upward departure in the criminal history calculation where counting the offenses together does not “adequately reflect the seriousness of the defendant’s criminal history or the frequency with which the defendant has committed crimes.” U.S.S.G. § 4A1.2 cmt. n. 3 (2007).
It is unclear from the record whether the district court intended to grant an upward departure under Note 3. Without invoking Note 3 explicitly, the district court did analyze whether Avalos’ criminal history is “over represented” when the offenses are counted separately. That sounds like a reference to Note 3. However, some of the district court’s comments at sentencing indicate that the district court may have mistakenly counted the offenses separately by applying the pre-2007 sentencing guidelines, which provided that “ ‘[p]rior sentences imposed in related cases are to be treated as one sentence’ ” for the purpose of calculating the defendant’s criminal history. United States v. Allen, 153 F.3d 1037, 1045 (9th Cir.1998) (quoting U.S.S.G. § 4A1.2(a)(2) (1998)). For example, the district court questioned Avalos’ attorney as to whether “[t]he robbery is related to the petty theft”. When defense counsel responded that the offenses are “considered related cases with the meaning of the guidelines because there was no intervening arrest”, the court responded, “I disagree with you.”
Thus, it is unclear whether the district court intended to count the offenses separately under the pre-2007 “related case” standard, or to grant an upward adjustment under Note 3 to the current version of § 4A1.2. This ambiguity makes it impossible for this Court to review the district court’s sentencing calculation. We therefore vacate Avalos’ sentence and remand to the district court for clarification of its criminal history calculation and re-sentencing consistent with this opinion. It should be noted that this Court renders no opinion as to whether the district court should grant an upward departure to Ava-los’ criminal history under Note 3, nor any opinion as to the reasonableness of Avalos’ sentence under 18 U.S.C. § 3553(a).
SENTENCE VACATED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470884/ | MEMORANDUM **
Andreda Golden appeals pro se from the district court’s order dismissing for failure to state a claim her action seeking benefits under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir.2009). We affirm.
The district court properly dismissed the action with prejudice as to defendant Hubbell Inc. because it is not a proper defendant under 29 U.S.C. § 1132(d)(1). See Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1287 (9th Cir.1990) *228(dismissing action against employer because ERISA permits suits to recover benefits only against an employee benefit plan).
The district court properly dismissed the action without prejudice as to defendant Hubbell Incorporated Retirement Plan for Collectively Bargained Hourly Employees because Golden never submitted an application for benefits and therefore failed to exhaust administrative remedies. See Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483 (9th Cir.1995) (requiring exhaustion in suits brought under ERISA). Even if the documents that Golden submitted to Hubbell’s Plan Manager are construed as an application, she did not exhaust the Plan’s internal review procedures. See id. (explaining that “a claimant must avail himself or herself of a plan’s own internal review procedures before bringing suit in federal court”).
The district court did not abuse its discretion by denying Golden’s motion for reconsideration because Golden did not identify any new evidence, change in law, clear error, or manifest injustice. See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.1993) (reviewing district court’s denial of a motion to reconsider for an abuse of discretion and setting forth requirements for reconsideration).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470887/ | MEMORANDUM *
Miranda Eksund appeals from the district court’s order affirming the denial of Disability Insurance and Supplemental Security Income benefits under the Social Security Act, 42 U.S.C. §§ 423 & 1382(a). Eksund challenges the administrative law judge’s (ALJ) determinations at steps four and five of the five-step sequential evaluation process. See 20 C.F.R. § § 404.1520 & 416.920. We affirm.
1. Substantial evidence does not support the determination at step four that Eksund had past relevant work to which she was capable of returning. Eksund’s earnings at the convention center job were far below a level that would indicate that the work was “substantial gainful activity.” See 20 C.F.R. § § 404.1574(b) & 416.974(b). The Commissioner has not pointed to substantial evidence that, despite Eksund’s low earnings, this work was substantial gainful activity. See Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir.2001). Indeed, the ALJ specifically found that Eksund had “not engaged in substantial gainful activity in the past.” Because past work must have been done at the substantial gainful activity level to be “past relevant work” under the regulations, see 20 C.F.R. §§ 404.1560(b)(1) & 416.960(b)(1), a finding that Eksund was not disabled at step four was improper, and the analysis must proceed to step five. See Lewis, 236 F.3d at 515.
*2302. As the ALJ held in the alternative, the Commissioner carried his burden at step five of showing that Eksund is capable of performing work that exists in significant numbers in the national economy. See Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.1999). As the Commissioner’s counsel recognized at oral argument, substantial evidence does not support the ALJ’s determination that Eksund could perform work as a “floral arranger.” The evidence indicates that she could not successfully perform such work, having been fired from a floral arranging job after one week.
The ALJ’s holding that Eksund could perform other unskilled work, however, rests on substantial evidence. Substantial evidence indicates that Eksund’s non-exer-tional limitations do not so significantly restrict her range of work as to preclude other work that exists in significant numbers in the national economy. Social Security Ruling 85-15 states that unskilled work “ordinarily involve[s] dealing primarily with objects, rather than with data or people.” SSR 85-15, available at 1985 WL 56857, at *4 (S.S.A.). It further provides that the mental demands of unskilled work “include the abilities (on a sustained basis) to ... respond appropriately to supervision, co-workers, and usual work situations,” and indicates that those individuals who cannot meet these mental demands face a “severely limit[ed] potential occupational base.” Id.
Here, the record demonstrates that Ek-sund’s non-exertional limitations to some degree directly restrict her ability to “respond appropriately to supervision, coworkers, and usual work situations.” But her employment history demonstrates that this is not always the case, as she has for some time worked folding linens and preparing table settings, although on a part time basis. Also, an examining physician reported that Eksund could perform unskilled jobs with “limited public contact” and “an understanding supervisor.” Consequently, even disregarding the grids and placing the burden on the Commissioner, there is substantial evidence in the record to support the ALJ’s conclusion that Ek-sund could, despite her difficulties in relating appropriately to others, perform work that exists in significant numbers in the national economy.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470890/ | MEMORANDUM *
Wanda Davis appeals the district court’s order granting summary judgment in favor of the City of Seattle and Jorge Carrasco. We affirm.1 Davis’s claims that accrued before August 28, 2003, are barred by the statute of limitations. Wash. Rev.Code § 4.96.020(4); see RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir.2002). Davis’s allegations that would, if true, establish causes of action accruing prior to August 28, 2003, are also separated by intervening events from the subsequent actions of which she complains. See Antonius v. King County, 153 Wash.2d 256, 103 P.3d 729, 733, 737 (2004). Nor does Davis point to any evidence showing that the claims “emanat[ed] from the same discriminatory animus.” Id. at 733 (internal quotation marks omitted). The alleged acts of harassment by one of Davis’s supervisors are barred because of Seattle City Light’s intervening act of transferring Davis to another station. Id. at 737.
Davis has not established a prima facie case of hostile work environment harassment because she has offered no evidence of any actions rising to the level of “harassment” that could be imputed to the defendants. See Domingo v. Boeing Employees’ Credit Union, 124 Wash.App. 71, 98 P.3d 1222,1228-29 (2004). Behavior that is “merely offensive” and not “so extreme as to amount to a change in the terms and conditions of employment” is not sufficient to escape summary judgment. Adams v. Able Bldg. Supply, Inc., 114 Wash.App. 291, 57 P.3d 280, 283-84 (2002) (citing Washington v. Boeing Co., 105 Wash.App. 1, 19 P.3d 1041, 1049 (2001)).
Davis has not established a pnma facie cáse of retaliation. Davis argues that Paul Weintraub, a Seattle City Light employee who at one point was Davis’s temporary supervisor, wanted to retaliate against Davis for her 1994 lawsuit and was in a position to “poison” her reputation and advancement in the workplace. But this allegation does not establish a “causal link between” her protected activities and any adverse action. See Tyner v. State, 137 Wash.App. 545, 154 P.3d 920, 928 (2007).
Even assuming that Davis established a prima facie case of disparate treatment or retaliation, Davis failed to put forward any evidence, direct or circumstantial, to establish that Seattle City Light’s legitimate nondiscriminatory and non-retaliatory reasons for its actions were pretexts for discrimination. See Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 23 P.3d 440, 446 (2001), overruled on other grounds by McClarty v. Totem Elec., 157 Wash.2d 214, 137 P.3d 844 (2006). Davis’s speculation and conclusory statements about the feelings and motives of others do not establish a genuine issue of fact. See id. at 446, 451; Tyner, 154 P.3d at 924 (“A nonmoving party, however, may not rely on speculation, argumentative assertions *233that unresolved factual issues remain or in having its affidavits considered at face value.”) (internal quotation marks and citation omitted); Hines v. Todd Pac. Shipyards Corp., 127 Wash.App. 356, 112 P.3d 522, 530 (Wash.Ct.App.2005) (“Nor can pretext be established by mere conclusory statements of a plaintiff who feels that he has been discriminated against.”) (internal quotation marks and citation omitted).
Davis did not rebut evidence that she and her crew were given the benefit of more overtime hours and more out-of-class hours between 2004 and 2006, than nearly all of her peers. Nor did Davis rebut Seattle City Light’s evidence that although Davis was not selected for some promotions, it only selected candidates who scored better than she and had not committed similar rules violations. Davis presented no evidence that the factual conclusions of Seattle City Light’s disciplinary investigations were in error, or that individuals who committed similar offenses were subject to less punishment. With regards to Weintraub’s involvement in the investigation which resulted in Davis’ 2006 suspension, that investigation found, among other things, “that the justifications given by Ms. Davis to Mr. Weintraub for conducting the expectations meeting were misleading; the evidence did not support Ms. Davis’ concern that Mr. Horne made homophobic or racist comments in the workplace.” Even if Davis had established a “weak issue” of fact as to pretext, summary judgment was proper because she presented no more than “[t]he mere existence of a scintilla of evidence,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Seattle City Light presented a “strong reason” to justify its actions, Milligan v. Thompson, 110 Wash.App. 628, 42 P.3d 418, 424 (2002), and no rational trier of fact could conclude Seattle City Light’s actions were discriminatory or retaliatory, Domingo, 98 P.3d at 1227. Davis offers no admissible evidence to establish that Seattle City Light’s superintendent, or any other supervisor, acted on a discriminatory bias against her.
For the same reasons Davis has not made out claims of disparate treatment or retaliation, she has not shown a violation of 42 U.S.C. § 1983. See Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir.1991).
The district court’s rulings on joinder and the various evidentiary issues were not an abuse of discretion. Cfi Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.1997).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We grant Davis’s motion to take judicial notice. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470869/ | MEMORANDUM **
Former Hawaii state prisoner Anthony Regan appeals pro se from the district court’s orders denying his motions for relief under Federal Rule of Civil Procedure 60(b). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Flores v. Arizona, 516 F.3d 1140, 1163 (9th Cir.2008). We affirm.
The district court did not abuse its discretion in denying the motion for relief from judgment based on Regan’s failure to show that extraordinary circumstances prevented him from filing a timely appeal. See Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.1982) (requiring dilatory movant to show that “extraordinary circumstances” prevented prosecution of an appeal).
The district court also did not abuse its discretion in denying Regan’s motion for reconsideration because Regan did not identify any mistake, newly discovered evidence, fraud, or “extraordinary circumstances” which would justify relief. See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993) (setting forth grounds for reconsideration).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470871/ | MEMORANDUM **
Zenaida Reyes appeals from the 16-month sentence imposed following her guilty-plea conviction for bribery in violation of 18 U.S.C. § 201(b)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Reyes contends that the district court failed to resolve factual disputes or otherwise comply with the sentencing requirements of Federal Rule of Criminal Procedure 32 and U.S.S.G. § 6A1.3. These contentions lack merit. See United States v. Montenegro-Rojo, 908 F.2d 425, 429 & n. 3 (9th Cir.1990); see also United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir.2008).
We reject Reyes’ contention that remand is required because the district court procedurally or otherwise erred by considering facts from the pre-sentence report during its 18 U.S.C. § 3553(a) analysis after stating that it would focus on the facts admitted to in the plea agreement. There was no reversible error on this record. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1101 (9th Cir.2005); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).
Reyes also contends that the district court erred in applying a two-level increase in her offense level under U.S.S.G. § 2Cl.l(b)(l). She asserts that the district court was not permitted to consider relevant conduct that occurred outside the United States, and clearly erred in determining that there were two separate incidents of bribery. These contentions fail. See United States v. Kahlon, 38 F.3d 467, 470 (9th Cir.1994); see also United States v. Speelman, 431 F.3d 1226, 1232 (9th Cir.2005).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470873/ | MEMORANDUM **
Ramiro Lopez-Aguirre appeals from his guilty-plea conviction and 65-month sentence imposed for illegal reentry following deportation in violation of 8 U.S.C. § 1326.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Lopez-Aguirre’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470878/ | MEMORANDUM **
James Drimmer alleges that WD-40 Co. falsely markets its 2000 Flushes toilet cleaner as not harmful to plumbing or septic systems. He asserts claims for common-law negligence, false advertising in violation of California’s Unfair Competition Law (UCL), Cal. Bus. & Prof.Code § 17200 et seq., and breach of the implied warranty of fitness under California’s Song-Beverly Act, Cal. Civ.Code § 1790 et seq. Drimmer appeals the decision of the district court not to certify a class on his UCL and Song-Beverly Act claims pursuant to Rule 23 of the Federal Rules of Civil Procedure. Under Rule 23, “[a]s the party seeking class certification, [Drimmer bore] the burden of demonstrating that [he] met each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b).” Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir.2001) (citation omitted).
The four prerequisites to class certification set forth in Rule 23(a) are generally described as (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. See Fed.R.Civ.P. 23(a). The district court found that Drimmer’s claim did not satisfy the commonality, typicality, and adequacy prerequisites. We review the district court’s decision for an abuse of discretion. Molski v. Gleich, 318 F.3d 937, 946 (9th Cir.2003). A certification decision premised on legal error constitutes an abuse of discretion. Id. Because Drimmer must satisfy all of the Rule 23(a) prerequisites, we must affirm the district court if it correctly ruled on any of them. We conclude that the district court did not abuse its *221discretion when it found that Drimmer was not an adequate class representative. We therefore affirm the district court.
“Rule 23(a)(4) permits the certification of a class action only if the representative parties will fairly and adequately protect the interests of the class.” Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.2003) (internal quotation marks omitted). To determine whether a proposed class representative adequately and fairly represents the proposed class, “we ask two questions: (1) Do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs • and their counsel prosecute the action vigorously on behalf of the class?” Id. With respect to issue (1), the district court was concerned that Drimmer “holds different priorities and litigation incentives than a typical class member,” and therefore concluded that the case did not satisfy Rule 23(a)(4)’s requirement that representative parties fairly and adequately protect the interests of the class. The district court based its finding on “the combination of a personal relationship [and] landlord-tenant relationship” between Drimmer and his attorney, and Drimmer’s “inexplicable disinterest in pursuing all remedies available to him.” These findings are sufficient to support the district court’s discretionary decision that Drimmer was not an adequate class representative. Drimmer and his attorney worked together and are close friends. Drimmer’s attorney was also his landlord. It is not an abuse of discretion to find that this relationship indicated a potential conflict of interest between Drimmer and his counsel and the proposed class members. The court was appropriately concerned that Drimmer’s decisions may not be based on the best interests of class members, but on the best interests of his attorney.
Our colleague is concerned that the district court stated that no single factor was sufficient to disqualify Drimmer as an adequate class representative, and thus the relationship between Drimmer and his attorney would, alone, be insufficient to affirm the district court. We do not find any authority to suggest that Drimmer’s personal and landlord-tenant relationship with his attorney would not be sufficient to deny class certification. Accordingly, we cannot say that the district court abused its discretion.
Because the district court did not abuse its discretion when determining that Drim-mer was an inadequate class representative, and a finding of inadequacy is sufficient to deny class certification, we need not consider the other issues raised by Drimmer.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470879/ | WILKEN, District Judge,
dissenting:
I respectfully dissent.
The district court concluded that Drim-mer did not satisfy Rule 23(a)(4)’s requirement that representative parties fairly and adequately protect the interests of the class. The district court based its finding on two factors: “the combination of a personal relationship [and] landlord-tenant relationship” between Drimmer and his attorney, and Drimmer’s “inexplicable disinterest in pursuing all remedies available to him.” However, the court stated that “any one factor would not disqualify Drim-mer.”
Drimmer seeks restitution against WD-40 in the form of a refund of the purchase price of 2000 Flushes. He does not seek recovery of the cost of repairing damage to class members’ toilets resulting from the use of 2000 Flushes. The district court believed that this evinced a conflict between Drimmer and members of the class *222whose toilets had been damaged and who could potentially obtain monetary damages as a result.
Because a UCL claim is equitable in nature, prevailing plaintiffs are generally limited to injunctive relief and restitution; damages cannot be recovered. In re Tobacco II Cases, 46 Cal.4th 298, 312, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). Damages were thus not available to Drimmer in connection with this claim, and he should not be considered an inadequate class representative for deciding not to seek them.
Damages were available in on Drim-mer’s negligence and Song-Beverly Act claims. However, Rule 23(b)(3) permits class certification only if “questions of law or fact common to class members predominate over any questions affecting only individual members.” This predominance requirement prevents Drimmer from pursuing any claim on behalf of class members based on injury in the form of actual damage to class members’ toilets, because doing so would require the introduction of individualized evidence and would preclude class certification under Rule 23(b)(3). In fact, the district court correctly found that class certification was unavailable on Drimmer’s negligence claim because an individualized showing of damages was an element of the claim, and thus Rule 23(b)(3)’s predominance requirement could not be satisfied. Drimmer does not appeal the district court’s decision to deny class certification of the negligence claim.
In contrast to the negligence claim, toilet damage is not an element of the type of Song-Beverly Act claim Drimmer asserts. See Hicks v. Kaufman and Broad Home Corp., 89 Cal.App.4th 908, 918, 107 Cal. Rptr.2d 761 (2001). It was reasonable for Drimmer to believe that seeking compensation for toilet damage in connection with this claim would cause individualized issues to predominate, thereby rendering class certification inappropriate. Drimmer should not be declared an inadequate class representative because he declined to seek a remedy that would defeat class certification.
Nor would Drimmer’s decision prejudice class members whose toilets were damaged. Those class members would not be precluded from pursuing their own negligence or Song-Beverly Act claims for toilet damage because such claims would require the introduction of individualized evidence and thus cannot be asserted in this action. See Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998) (“Res judi-cata (or claim preclusion) bars all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties on the same cause of action.”) (emphasis added).
Because the district court stated that no single factor was sufficient to disqualify Drimmer, it appears that the court would have found Drimmer to be an adequate class representative if it had not taken into account Drimmer’s failure to seek damages for injury to class members’ toilets and, instead, had only considered Drim-mer’s relationship with his attorney. It is also important to note the fact that the attorney is apparently no longer working on this case. Accordingly, I would remand for the district court to conduct a new inquiry on Drimmer’s adequacy as class representative.
Because the majority affirms the district court on the basis of the district court’s adequacy finding, it did not reach the issues of predominance, commonality and superiority. Because I would remand, I would also reach these issues and would find that the district court erred in its analysis of them. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470881/ | MEMORANDUM **
Defendant/Appellant Mauricio Rodriguez (“Rodriguez”) appeals from the final order of the district court denying his motion to dismiss an indictment pursuant to the Double Jeopardy Clause of the Fifth Amendment. Rodriguez was arrested and indicted for felony drug trafficking. During his first trial, Rodriguez moved for a mistrial on the basis of prejudicial testimony and discovery violations. After the district court granted the motion, Rodriguez moved to dismiss the indictment pursuant to Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), which held that a subsequent proceeding may be *224barred by the Fifth Amendment if the government intentionally provokes a mistrial. The district court denied the motion to dismiss without holding an evidentiary hearing, and Rodriguez immediately appealed. The district court retained jurisdiction over the proceeding, despite the notice of appeal, on the ground that the motion to dismiss was frivolous.
We heard the interlocutory appeal and reversed the decision of the district court. See U.S. v. Rodriguez, 229 Fed.Appx. 547 (9th Cir.2007). Holding, inter alia, that “the prosecution potentially had much to gain from a mistrial, and little to lose,” we remanded with instructions that the district court conduct an evidentiary hearing to determine whether the prosecution had goaded the defense into moving for a mistrial. Id. at 549. On remand, the district court conducted an evidentiary hearing, which included lengthy testimony from the lead prosecutor. The district court again denied Rodriguez’s motion to dismiss. Rodriguez now appeals that final order.
We review a denial of a motion to dismiss an indictment on the basis of double jeopardy de novo. See U.S. v. Lun, 944 F.2d 642, 644 (9th Cir.1991). Factual findings with respect to the government’s conduct are reviewed for clear error. U.S. v. Ziskin, 360 F.3d 934, 942 (9th Cir.2003).
Barring retrial pursuant to the Fifth Amendment and Kennedy requires a determination of the prosecutor’s subjective intent at the time of the misconduct. See U.S. v. Hagege, 437 F.3d 943, 951-52 (9th Cir.2006). Intent can be inferred from “the ‘objective facts and circumstances.’” Id. (quoting Kennedy, 456 U.S. at 675, 102 S.Ct. 2083). On remand, we outlined several issues to be explored at the evidentia-ry hearing. These included (1) the prosecutor’s familiarity with the rules set forth in U.S. v. Velarde-Gomez, 269 F.3d 1023 (9th Cir.2001); (2) the prosecutor’s rationale for repeatedly questioning a witness about Rodriguez’s demeanor; and (3) the prosecutor’s justification for eliciting “irrelevant and prejudicial testimony” from another witness. Rodriguez, 229 Fed.Appx. at 549. Additional factors to consider include whether the government objected to the motion for mistrial, whether the government’s case was going badly at the time of the misconduct, and if there was an advantage to be gained by a new trial. U.S. v. Lun, 944 F.2d 642, 644-46 (9th Cir.1991).
On remand, the district court made detailed findings of fact to support its conclusion that the prosecutor did not derail the proceedings intentionally. The government had a strong case, and while the prosecutor may have been aware of Velarde-Gomez and the risk of mistrial created by his aggressive tactics, he did not roll over when Rodriguez moved for mistrial. The district court’s factual findings were not clearly erroneous.1
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. At oral argument, Rodriguez was granted permission to file a supplemental brief to address our recent decision in U.S. v. Paul, 561 F.3d 970 (9th Cir.2009). After consideration of the supplemental briefing, we find Paul distinguishable both on the facts and with respect to the applicable standard of review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470885/ | MEMORANDUM **
Andreda Golden appeals pro se from the district court’s order dismissing for failure to state a claim her action seeking benefits under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir.2009). We affirm.
The district court properly dismissed the action with prejudice as to defendant Hubbell Inc. because it is not a proper defendant under 29 U.S.C. § 1132(d)(1). See Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1287 (9th Cir.1990) *228(dismissing action against employer because ERISA permits suits to recover benefits only against an employee benefit plan).
The district court properly dismissed the action without prejudice as to defendant Hubbell Incorporated Retirement Plan for Collectively Bargained Hourly Employees because Golden never submitted an application for benefits and therefore failed to exhaust administrative remedies. See Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483 (9th Cir.1995) (requiring exhaustion in suits brought under ERISA). Even if the documents that Golden submitted to Hubbell’s Plan Manager are construed as an application, she did not exhaust the Plan’s internal review procedures. See id. (explaining that “a claimant must avail himself or herself of a plan’s own internal review procedures before bringing suit in federal court”).
The district court did not abuse its discretion by denying Golden’s motion for reconsideration because Golden did not identify any new evidence, change in law, clear error, or manifest injustice. See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.1993) (reviewing district court’s denial of a motion to reconsider for an abuse of discretion and setting forth requirements for reconsideration).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470886/ | MEMORANDUM *
Miranda Eksund appeals from the district court’s order affirming the denial of Disability Insurance and Supplemental Security Income benefits under the Social Security Act, 42 U.S.C. §§ 423 & 1382(a). Eksund challenges the administrative law judge’s (ALJ) determinations at steps four and five of the five-step sequential evaluation process. See 20 C.F.R. § § 404.1520 & 416.920. We affirm.
1. Substantial evidence does not support the determination at step four that Eksund had past relevant work to which she was capable of returning. Eksund’s earnings at the convention center job were far below a level that would indicate that the work was “substantial gainful activity.” See 20 C.F.R. § § 404.1574(b) & 416.974(b). The Commissioner has not pointed to substantial evidence that, despite Eksund’s low earnings, this work was substantial gainful activity. See Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir.2001). Indeed, the ALJ specifically found that Eksund had “not engaged in substantial gainful activity in the past.” Because past work must have been done at the substantial gainful activity level to be “past relevant work” under the regulations, see 20 C.F.R. §§ 404.1560(b)(1) & 416.960(b)(1), a finding that Eksund was not disabled at step four was improper, and the analysis must proceed to step five. See Lewis, 236 F.3d at 515.
*2302. As the ALJ held in the alternative, the Commissioner carried his burden at step five of showing that Eksund is capable of performing work that exists in significant numbers in the national economy. See Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.1999). As the Commissioner’s counsel recognized at oral argument, substantial evidence does not support the ALJ’s determination that Eksund could perform work as a “floral arranger.” The evidence indicates that she could not successfully perform such work, having been fired from a floral arranging job after one week.
The ALJ’s holding that Eksund could perform other unskilled work, however, rests on substantial evidence. Substantial evidence indicates that Eksund’s non-exer-tional limitations do not so significantly restrict her range of work as to preclude other work that exists in significant numbers in the national economy. Social Security Ruling 85-15 states that unskilled work “ordinarily involve[s] dealing primarily with objects, rather than with data or people.” SSR 85-15, available at 1985 WL 56857, at *4 (S.S.A.). It further provides that the mental demands of unskilled work “include the abilities (on a sustained basis) to ... respond appropriately to supervision, co-workers, and usual work situations,” and indicates that those individuals who cannot meet these mental demands face a “severely limit[ed] potential occupational base.” Id.
Here, the record demonstrates that Ek-sund’s non-exertional limitations to some degree directly restrict her ability to “respond appropriately to supervision, coworkers, and usual work situations.” But her employment history demonstrates that this is not always the case, as she has for some time worked folding linens and preparing table settings, although on a part time basis. Also, an examining physician reported that Eksund could perform unskilled jobs with “limited public contact” and “an understanding supervisor.” Consequently, even disregarding the grids and placing the burden on the Commissioner, there is substantial evidence in the record to support the ALJ’s conclusion that Ek-sund could, despite her difficulties in relating appropriately to others, perform work that exists in significant numbers in the national economy.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470888/ | MEMORANDUM *
Wanda Davis appeals the district court’s order granting summary judgment in favor of the City of Seattle and Jorge Carrasco. We affirm.1 Davis’s claims that accrued before August 28, 2003, are barred by the statute of limitations. Wash. Rev.Code § 4.96.020(4); see RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir.2002). Davis’s allegations that would, if true, establish causes of action accruing prior to August 28, 2003, are also separated by intervening events from the subsequent actions of which she complains. See Antonius v. King County, 153 Wash.2d 256, 103 P.3d 729, 733, 737 (2004). Nor does Davis point to any evidence showing that the claims “emanat[ed] from the same discriminatory animus.” Id. at 733 (internal quotation marks omitted). The alleged acts of harassment by one of Davis’s supervisors are barred because of Seattle City Light’s intervening act of transferring Davis to another station. Id. at 737.
Davis has not established a prima facie case of hostile work environment harassment because she has offered no evidence of any actions rising to the level of “harassment” that could be imputed to the defendants. See Domingo v. Boeing Employees’ Credit Union, 124 Wash.App. 71, 98 P.3d 1222,1228-29 (2004). Behavior that is “merely offensive” and not “so extreme as to amount to a change in the terms and conditions of employment” is not sufficient to escape summary judgment. Adams v. Able Bldg. Supply, Inc., 114 Wash.App. 291, 57 P.3d 280, 283-84 (2002) (citing Washington v. Boeing Co., 105 Wash.App. 1, 19 P.3d 1041, 1049 (2001)).
Davis has not established a pnma facie cáse of retaliation. Davis argues that Paul Weintraub, a Seattle City Light employee who at one point was Davis’s temporary supervisor, wanted to retaliate against Davis for her 1994 lawsuit and was in a position to “poison” her reputation and advancement in the workplace. But this allegation does not establish a “causal link between” her protected activities and any adverse action. See Tyner v. State, 137 Wash.App. 545, 154 P.3d 920, 928 (2007).
Even assuming that Davis established a prima facie case of disparate treatment or retaliation, Davis failed to put forward any evidence, direct or circumstantial, to establish that Seattle City Light’s legitimate nondiscriminatory and non-retaliatory reasons for its actions were pretexts for discrimination. See Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 23 P.3d 440, 446 (2001), overruled on other grounds by McClarty v. Totem Elec., 157 Wash.2d 214, 137 P.3d 844 (2006). Davis’s speculation and conclusory statements about the feelings and motives of others do not establish a genuine issue of fact. See id. at 446, 451; Tyner, 154 P.3d at 924 (“A nonmoving party, however, may not rely on speculation, argumentative assertions *233that unresolved factual issues remain or in having its affidavits considered at face value.”) (internal quotation marks and citation omitted); Hines v. Todd Pac. Shipyards Corp., 127 Wash.App. 356, 112 P.3d 522, 530 (Wash.Ct.App.2005) (“Nor can pretext be established by mere conclusory statements of a plaintiff who feels that he has been discriminated against.”) (internal quotation marks and citation omitted).
Davis did not rebut evidence that she and her crew were given the benefit of more overtime hours and more out-of-class hours between 2004 and 2006, than nearly all of her peers. Nor did Davis rebut Seattle City Light’s evidence that although Davis was not selected for some promotions, it only selected candidates who scored better than she and had not committed similar rules violations. Davis presented no evidence that the factual conclusions of Seattle City Light’s disciplinary investigations were in error, or that individuals who committed similar offenses were subject to less punishment. With regards to Weintraub’s involvement in the investigation which resulted in Davis’ 2006 suspension, that investigation found, among other things, “that the justifications given by Ms. Davis to Mr. Weintraub for conducting the expectations meeting were misleading; the evidence did not support Ms. Davis’ concern that Mr. Horne made homophobic or racist comments in the workplace.” Even if Davis had established a “weak issue” of fact as to pretext, summary judgment was proper because she presented no more than “[t]he mere existence of a scintilla of evidence,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Seattle City Light presented a “strong reason” to justify its actions, Milligan v. Thompson, 110 Wash.App. 628, 42 P.3d 418, 424 (2002), and no rational trier of fact could conclude Seattle City Light’s actions were discriminatory or retaliatory, Domingo, 98 P.3d at 1227. Davis offers no admissible evidence to establish that Seattle City Light’s superintendent, or any other supervisor, acted on a discriminatory bias against her.
For the same reasons Davis has not made out claims of disparate treatment or retaliation, she has not shown a violation of 42 U.S.C. § 1983. See Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir.1991).
The district court’s rulings on joinder and the various evidentiary issues were not an abuse of discretion. Cfi Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.1997).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We grant Davis’s motion to take judicial notice. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470889/ | BERZON, Circuit Judge,
dissenting in part:
I dissent as to the retaliation claim regarding the 2006 suspension; otherwise I concur.
In my view, there was sufficient evidence regarding the 2006 suspension from which a reasonable jury could infer that a retaliatory motive was at work. Paul Weintraub admitted at his deposition that he harbored ill-feeling toward Davis because of the 1994 lawsuit. Weintraub was involved in the decision to suspend Davis for two days in 2006; he was interviewed about the Horne incident and informed the investigator of his distrust of Davis, even though, as he recognized in his deposition, his opinion of Davis had nothing to do with the event being investigated. Also, Wein-traub had approved Davis’s plan to meet with Horne before Horne began a rotation in Davis’s unit, a plan proposed because Davis would be away when Horne began work.
The notion that the meeting was somehow seriously embarrassing to Horne could be seen as pretextual. The meeting *234was entirely private, and the investigation did not suggest that the mode of interaction was inappropriate. And, whether or not Horne made homophobic comments is on this record disputable; a reasonable jury could conclude that Davis believed in good faith that he did.
In sum, there is evidence from which a reasonable jury could conclude that an individual with a retaliatory motive influenced the decision, and that the reasons given for the decision were pretextual, thus bolstering the inference of retaliatory motive. I would therefore reverse the grant of summary judgment to the City of Seattle as to this one retaliation claim only, and would otherwise affirm. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470894/ | MEMORANDUM *
Thomas Preciado appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his convictions for murder, second degree robbery, and second degree burglary. We have jurisdiction pursuant to 28 U.S.C. § 2253 and review the district court’s denial of the petition de novo. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). We affirm.
The California Court of Appeal did not unreasonably apply federal law when it affirmed the trial court’s denial of discovery of malpractice-related hospital records. There is no clearly established federal right to compel pretrial discovery in a situation like Preciado’s, particularly since the discovery he requested would not have provided him with a defense under California law and the trial judge left open the possibility of in camera review of the records. See Pennsylvania v. Ritchie, 480 U.S. 39, 53, 64-65, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see also Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir.1992) (“A defendant has no right ... to present irrelevant evidence.”).
It was likewise reasonable for the California Court of Appeal to hold that limiting Preciado’s cross-examination of Ms. Dhillon’s treating physician didn’t violate the Confrontation Clause. Any possible malpractice wouldn’t have risen to the level necessary to provide Preciado with a defense under California law, and there is no clearly established right to irrelevant cross-examination.
The Court of Appeal did not unreasonably affirm the trial court’s denial of *236Preciado’s motion to suppress his videotaped statements to the police. The state court was not unreasonable in ruling the statement to have been voluntary under the totality of circumstances. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The Court of Appeal also did not unreasonably affirm the denial of the motion to suppress as to Preciado’s statements to his mother, because those statements were never introduced at trial.
Because Preciado failed to raise a colorable claim for relief, the district court did not abuse its discretion in denying him an evidentiary hearing. See Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.2001).
We decline to consider Preciado’s jury instruction claims because they were not included in the district court’s certificate of appealability and he has not made a substantial showing of the denial of a constitutional right; as Preciado concedes in his brief, there is no clearly established requirement that courts give a lesser-included offense instruction in non-capital cases.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470895/ | REINHARDT, Circuit Judge,
concurring:
I concur. I note, however, that the only portion of Preciado’s statement that was admitted was that which preceded his invocation of his right to counsel. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470896/ | MEMORANDUM *
Xiao Yu Xie, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review only the asylum determination1 for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), treating Xie’s testimony as credible, Kalu-bi v. Ashcroft, 364 F.3d 1134, 1138-39 (9th Cir.2004). We grant the petition for review.
The BIA concluded that Xie did not establish a well-founded fear of persecution because the government had demonstrated that it was reasonable for him to relocate within China. Substantial evidence does not support the BIA’s conclusion. Xie left Fujian Province with his mother and father, who sought to escape the government’s enforcement of population control policies. They took up residence in the distant province of Sichuan. Learning of Xie’s early marriage and his own growing family, Fujian officials traveled to Sichuan to look for Xie and his wife, forcing them to move to avoid detection and causing Xie to flee China shortly thereafter. These undisputed facts establish persecution by the government on account of Xie’s political opinion under 8 U.S.C. § 1101(a)(42)(B) (“[A] person who ... has been persecuted for failure or refusal to undergo [a population control] procedure ... shall be deemed to have been persecuted on account of political opinion.... ”). This past persecution gave rise to a presumption that Xie had a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). Because a unit of the Chinese government persecuted Xie, relocation within China was presumed not to be reasonable, and the government bore the burden of rebutting that presumption by a preponderance of the evidence. Id. § 1208.13(b)(3)(ii). Because Fujian officials amply demonstrated their willingness to search in a distant province for Xie as a violator of Fujian population control policy, no reasonable fact finder could conclude that the government carried its burden. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1090-91 (9th Cir.2005) (holding that internal relocation was not reasonable where credible testimony and the country report indicated that petitioner’s health and status as a homosexual would prevent safe relocation within Mexico). Xie accordingly has shown that he is statutorily eligible for asylum.
Therefore, we grant the petition for review and remand for a discretionary determination whether to grant Xie asylum. See Navas v. INS, 217 F.3d 646, 655 (9th Cir .2000).
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. We do not review the withholding of removal decision because, although Xie mentions withholding at the end of his brief, he does not state it as an issue on appeal and does not argue it in his brief. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1992). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470898/ | MEMORANDUM *
Having lost his action on the merits under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., Plaintiff-Appellant Wayne Ritchie seeks to reverse the district court’s award of costs to Defendant-Appel-lee United States. Ritchie argues that the district court erred in denying his motion to deny costs to the government and in denying his motion for discovery of alleged documents containing proposed deposition questions and answers. As the facts and procedural history are familiar to the par*239ties, we do not recite them here except as necessary to explain our disposition.
Generally, costs are awarded to the prevailing party. See Fed.R.Civ.P. 54(d) (“[CJosts — other than attorney’s fees— should be allowed to the prevailing party.”); Ass’n of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir.2000). However, we have found an award of costs to be an abuse of discretion in limited circumstances. See, e.g., Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079-80 (9th Cir.1999). Ritchie makes three arguments for why we should so find in this case.
1.The Government’s Answer and Amended Answer
Ritchie first argues that the government engaged in misconduct by filing answers that it knew to be false. Specifically, he argues that, in light of various publicly available books and articles documenting the CIA’s MKULTRA program, the government must have known that Feldman was involved in the CIA drugging program. While deliberate ignorance can constitute knowledge, Ritchie fails to show by clear and convincing evidence that the government was deliberately ignorant or that it perpetrated a “fraud on the court.” See Phoceene Sous-Marine, S.A v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 n. 13 (9th Cir.1982). In the previous appeal on the merits, we held that “[t]he district court’s finding that Ritchie failed to prove by clear and convincing evidence that the government acted in bad faith in relying on Feldman’s deposition testimony is supported by the record.” Ritchie v. United States, 451 F.3d 1019, 1026 (9th Cir.2006) (citation omitted). This reasoning also controls here; the district court did not abuse its discretion in denying Ritchie’s motion to review costs.
2. Feldman’s Second Deposition
In the trial on the merits, the district court penalized the government’s deposition misconduct by requiring it to pay for the second deposition, a sanction that was upheld on appeal. Because the misconduct was not egregious and the government had previously been sanctioned, the district court had discretion to deny Ritchie’s motion to review costs. Ass’n of Mexican-American Educators, 231 F.3d at 592; see also Richins v. Deere & Co., 229 F.R.D. 189, 193 (D.N.M.2004) (holding that denial of costs was inappropriate where the prevailing party had already been sanctioned for discovery abuses). The district court did not abuse that discretion.
3. Proposed Deposition Answers
Finally, the district court’s decision to discount the story of the government attorneys’ giving Feldman proposed deposition answers was not clearly erroneous. The two attorneys responsible for deposing Feldman submitted declarations denying giving Feldman proposed answers. See United States v. Norwood, 420 F.3d 888, 895 (8th Cir.2005) (stating that the existence of documents is a question of fact, subject to review for clear error). AUSA Kenney also submitted personal records showing that she did not stay at the hotel where Ritchie alleges that the deposition preparation took place. In addition, Feldman later retracted the story.
As this allegation lacks evidentiary support, the district court did not abuse its discretion in denying Ritchie’s motion for review of costs. Cf. United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Thus, it was also not an abuse of discretion to deny the motion to compel discovery for documents which the district court determined likely did not exist. In addition, because Ritchie moved to compel prior to making a formal request for dis*240covery, the district court was within its discretion to deny the motion based on Ritchie’s failure to follow Federal Rule of Civil Procedure 37(a)(3)(B).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470902/ | MEMORANDUM * AND ORDER
Ronald V. Weilbacher alleges that the district court erred in holding he could not recover additional money for his loss of consortium and society claims under his insurance policy with the Defendant. The policy states that a maximum of $100,000 will be reimbursed “for all damages due to a bodily injury to one (1) person.” “The bodily injury Limit of Liability ... for ‘each person’ includes the total of all claims made for such bodily injury and all claims derived from such bodily injury, including ... loss of society ... [and] loss of consortium.... ”
Weilbacher’s pain and damages derived from the bodily injury that caused his daughter’s death; he did not experience a unique bodily injury. See State Farm Mut. Auto. Ins. Co. v. Dowdy, 192 P.3d 994, 998 (Alaska 2008). The insurance company paid his daughter’s estate the full $100,000 for her bodily injury and death. Under the policy’s “each person” limit, he can recover no more.
Weilbacher next alleges that the “each person” limit in the policy is so vague and ambiguous that it violates state public policy. We interpret insurance contracts by looking to “1) the language of the disputed policy provisions; 2) the language of other policy provisions; 3) relevant extrinsic evidence; and 4) case law interpreting similar provisions.” State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1047 (Alaska 1996). A plain reading of the policy’s “each person” limit reveals no ambiguity in its terms. The limit does not conflict with Alaska law nor with public policy.
The Appellant’s motion for certification of question to Alaska Supreme Court is DENIED.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470904/ | *244MEMORANDUM *
Autotel has no right of action against the individual defendants under Bivens because the Administrative Procedure Act provides an adequate alternative remedy for its claims. See W. Radio Servs. v. U.S. Forest Serv. 578 F.3d 1116 (9th Cir.2009).
Because Autotel appealed the BLM’s denial of Autotel’s application for a right-of-way to construct a new tower on Frenchman Mountain to the Interior Board of Land Appeals (IBLA), the administrative action challenged in Autotel’s complaint was not a final action. 5 U.S.C. § 704; accord Puget Sound Energy, Inc. v. United States, 310 F.3d 613, 625 (9th Cir.2002) (“[I]f an initial agency action may be modified or reversed during administrative reconsideration or review it is rendered non-final while such review is pending.”). “We may affirm the district court on any basis supported by the record.” See Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 633 (9th Cir.2008). We therefore conclude that the district court properly dismissed Autotel’s challenge to this agency action.1
The BLM’s denial of Autotel’s application for a right-of-way to move its existing tower or construct a new “auxiliary” tower on Black Mountain was not arbitrary and capricious under 5 U.S.C. § 706(2)(A). Autotel’s arguments that the proposed new tower was a “minor auxiliary facility” and that the proposed location in the Sloan Canyon National Conservation Area was “not pristine” are policy disagreements. Autotel produces no evidence that the BLM “relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th Cir.1996).
Nor did IBLA act arbitrarily, capriciously, or othexwise violate 5 U.S.C. § 706(2) when it applied its own regulations and concluded that Autotel failed to timely object to Titan’s proposed right-of-way after being propexdy served with notice under 43 C.F.R. § 1810.2(b) and therefore lacked standing to appeal the BLM’s decision under 43 C.F.R. § 4.410.
Finally, the BLM did not unlawfully withhold or unreasonably delay action under 5 U.S.C. § 706(1) when it failed to take action to prevent Titan Towers’s facilities fi'om interfering with Autotel’s towers. Autotel’s claims that Titan Towers’s facilities were “unauthorized” are beside the point: Section VI.F of the Site Plan is the only px'ovision Autotel points to that might plausibly impose a legal obligation on the BLM to take some “discrete agency action,” see Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), and Autotel has failed to establish a genuine issue of material fact as to whether Titan Towers caused any actual interference.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Accordingly, AutoteTs appeal of the district court’s denial of its motion to supplement the administrative record is moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470906/ | MEMORANDUM **
Debtor Burnett Watkins appeals pro se a decision by the Bankruptcy Appellate Panel (BAP), affirming a bankruptcy judge’s ruling in a Chapter 7 proceeding that a judgment debt owed to creditor Market Express Transportation, Inc. is not dischargeable. Watkins contends the bankruptcy judge committed various evi-dentiary and procedural errors during the two-day trial. We affirm.
The bankruptcy court did not abuse its discretion by not granting Watkins’s motion in limine to exclude an expert’s report offered by Market Express. Watkins waived any objection to the admissibility of the report by offering it as an exhibit. See Coursen v. A.H. Robins Co., 764 F.2d 1329, 1340 (9th Cir.1985) (noting party may not challenge an in limine ruling when her attorney elicited the objectionable evidence). Moreover, Watkins cannot demonstrate prejudice in light of the bankruptcy court’s statements that it did not consider the report in making its decision. See Latman v. Burdette, 366 F.3d 774, 786 (9th Cir.2004) (noting party must show *246prejudice for a reversal based on an evi-dentiary error). Finally, to the extent Watkins challenges the bankruptcy court’s failure to rule on his motion, we have explained that in a bench trial, the need for an advanced ruling on a motion in limine to exclude eyidence is “generally superfluous” and unnecessary. See United States v. Heller, 551 F.3d 1108, 1112 (9th Cir.), cert. denied, — U.S. -, 129 S.Ct. 2419, 173 L.Ed.2d 1323 (2009).
There was also no abuse of discretion in excluding certain exhibits offered by Watkins. In each instance, the exhibits contained inadmissible hearsay, were not relevant, or were not properly authenticated. Contrary to Watkins’s contention, impeachment evidence is not required to be disclosed in pretrial submissions or during discovery. See Fed.R.Civ.P. 26(a)(3) (excluding evidence used “solely for impeachment” from pretrial and discovery disclosures); see also Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1172 (9th Cir.2008) (“impeachment evidence does not have to be revealed in pretrial disclosures”).
Finally, the judgment debt was nondis-chargeable under 11 U.S.C. § 523(a)(2)(A) (providing a debt obtained by “false pretenses, a false representation, or actual fraud” is not dischargeable). Watkins does not expressly challenge the bankruptcy court’s finding of fraud by reference to the record. Rather, he argues the bankruptcy court erred by not admitting his exhibits, by admitting evidence not disclosed pretrial, and by relying on the expert’s report. Because we reject those evidentiary arguments, we affirm the bankruptcy court’s ruling on the merits.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470911/ | KLEINFELD, J.,
dissenting:
I respectfully dissent.
The immigration judge found Goraya not credible, in part based on documents he presented to the court, and in part based on inconsistencies in his testimony regarding his father’s location from 1999 to 2001. The record does not compel the conclusion that the documents are authentic or that Goraya’s testimony was consistent, so I would deny the petition for review.
Goraya presented various identification documents, including a driver’s license with the word “signtature” misspelled and the wrong birthdate and home address, from his parents in India. But they were mailed to New York instead of Seattle. Goraya was given a chance to explain this and could not. Nor could Goraya tell the immigration judge to whom in New York the documents were sent. The judge concluded “[t]his is not a reasonable foundation which enhanced the Court’s confidence in either the credibility of the respondent or the authenticity of the documents.” The IJ’s conclusion is reasonable; the typographical errors and inconsistencies in the documents, and the unexplained New York connection, support the inference that they are not what they purport to be, and the record does not compel a contrary conclusion.
Goraya claims persecution because of an imputed political opinion due to his father’s activities. Goraya testified that after he *250and his father were both arrested in 1998, they both left home. When asked “from 1999 until today, how often is [your father] coming home?,” Goraya responded that “[h]e hasn’t come for, I mean, he just calls, he hasn’t come.” When he was arrested in December 2001, Goraya said that his father “came and got me released.” If Gor-aya’s father was home in 2001, that contradicts his testimony that the father had not come home since 1999. And if the father was able to come to the police station to get Goraya released in 2001, that casts doubt on the claim that the police were persecuting Goraya based on his father’s activities. In light of this discrepancy and the documents, the record does not compel a conclusion contrary to the immigration judge. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470913/ | MEMORANDUM **
California state prisoner Derek Tate appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
The admission of prior bad act evidence under California Evidence Code § 1108 was harmless error, as it was also properly admitted under California Evidence Code § 1101(b) to show identity and intent. The state courts’ determination that the § 1108 instruction did not violate due process was not contrary to or an unreasonable application of clearly established Supreme Court precedent. See Alberni v. McDaniel, 458 F.3d 860, 866-67(9th Cir. 2006).
Tate was afforded a reasonable opportunity to make a timely request to testify, but failed to do so. Accordingly, the state courts’ determination that Tate is not entitled to relief based on the trial court’s denial of his untimely motion to testify was not contrary to or an unreasonable application of clearly established federal law. Cf United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.1999).
Tate’s counsel’s failure to challenge the introduction of prior bad acts evidence under § 1108 did not constitute ineffective assistance of counsel as the evidence was properly admitted under § 1101(b). See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moreover, the record indicates that Tate’s counsel did make objections to the intro-*252duetion of the evidence under California Evidence Code § 1101(b) and, when they were overruled, offered to stipulate to the prior acts in order to preclude live testimony from the prior victim.
The trial court’s grant of Tate’s motion for self-representation did not violate Faretta v. California, 422 U.S. 806, 95 5.Ct. 2525, 45 L.Ed.2d 562 (1975). Tate’s motion to represent himself was unequivocal, timely, voluntary, and knowing. See id. at 835-36, 95 S.Ct. 2525. The trial court properly denied Tate’s motion for a continuance because it did not render Tate’s right of self-representation meaningless. See Armant v. Marquez, 772 F.2d 552, 556-57 (9th Cir.1985). Tate’s trial was effectively continued for two-and-a-half months after Tate’s motion for self-representation was granted on September
6.
Tate has failed to show that the prosecution withheld exculpatory evidence and has failed to explain why the challenged evidence is material. See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Tate’s remaining claims, even when construed liberally, were not fairly presented to the state courts or are time-barred. Therefore, relief on those grounds must be denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470914/ | MEMORANDUM **
Terry Lee Steward (“Steward”) appeals from the district court’s pre-trial order to involuntarily medicate him in order to render him competent to stand trial. Steward is charged with threatening to assault and threatening to murder two United States judges with the intent to impede, intimidate, interfere with, and retaliate against them while they were engaged in, and on account of, the performance of their official duties. 18 U.S.C. § 115(a). The district court’s order was appealable as a collateral order, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Sell v. United States, 539 U.S. 166, 176-77, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).
Steward argues that the district court erred when it concluded, under the first Sell factor, that the Government’s interest in prosecution was sufficiently important to permit him to be involuntarily medicated and rendered competent to stand trial. Sell, 539 U.S. at 180, 123 S.Ct. 2174 (stating that “a court must find that important governmental interests are at stake” before issuing an order permitting the Government to involuntarily medicate a criminal defendant to render him competent to stand trial, (emphasis in the original)).1 We “review the district court’s determinations with regard to the first Sell factor de novo.” United States v. Hernandez-Vasquez, 513 F.3d 908, 915-16 (9th Cir.2008).
“The Government’s interest in bringing to trial an individual accused of a serious crime is important.” Sell, 539 U.S. at 180, 123 S.Ct. 2174. “Courts ... must consider the facts of the individual case in evaluating the Government’s interest in prosecution.” Id. We have held that the starting point in analyzing the seriousness of the crime is the likely sentencing guidelines range, although that is not the only factor to be considered. Hernandez-Vasquez, 513 F.3d at 919. Furthermore, “[sjpecial circumstances may lessen the importance of [the Government’s] interest.” Sell, 539 *254U.S. at 180, 123 S.Ct. 2174. Such special circumstances include the possibility that if the defendant does not voluntarily submit to medication, he would be civilly confined, thereby “diminishing] the risks that ordinarily attach to freeing without punishment one who has committed a serious crime.” Id. The “possibility that the defendant has already been confined for a significant amount of time” is another special circumstance that is appropriate for the court to consider. Id.; see also Hernandez-Vasquez, 513 F.3d at 918 (citing Sell and explaining that relevant circumstances to be considered in evaluating the Government’s interest in prosecution include “the time a defendant has served while awaiting trial and the possibility of future civil confinement.”)
Taking into consideration the individual circumstances of this case, we affirm the finding of the district court that important governmental interests in prosecution exist. Sell, 539 U.S. at 180, 123 S.Ct. 2174. The undisputed advisory guidelines range is thirty-three to forty-one months, which is not insubstantial. We also recognize that the nature of the offense is severe, and that evidence shows a substantial possibility that Steward would likely not meet the criteria for civil commitment. [ER 27, 139] Hence, “the risks that ordinarily attach to freeing without punishment one who has committed a serious crime” would not be diminished in this case. Sell, 539 U.S. at 180, 123 S.Ct. 2174. We recognize that Steward has spent a considerable amount of time in pre-trial detention, a factor which weighs against the Government interest in prosecution. We agree with the district court, however, that in this case the amount of time Steward has spent in detention does not lessen the importance of the Government’s interest in prosecution. See Sell, 539 U.S. at 180, 123 S.Ct. 2174. On the facts presented here, the charged crimes are serious, and the Government has an important interest in prosecution.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The three remaining Sell factors require the trial court to find: (1) "that involuntary medication will significantly further those concomitant state interests”; id. at 181, 123 S.Ct. 2174, (2) "that involuntary medication is necessary to further those interests”; id., and (3) "that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition.” Id. (emphases in the original). Steward does not appeal the district court’s findings with regard to these three factors. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470917/ | MEMORANDUM **
Pedro Sanchez-Espinoza (Sanchez) and Roy Jack Bonilla (Bonilla) appeal their convictions and sentences after being convicted in a joint trial of conspiracy to bring illegal aliens to the United States for financial gain, conspiracy to transport illegal aliens, three counts of bringing illegal aliens to the United States for financial gain, and three counts of transporting illegal aliens.
1. The district court did not err by admitting evidence of prior smuggling incidents because they were inextricably intertwined with the conspiracy charges. See United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir.2004). The district court did not abuse its discretion under Rule 403 in admitting the prior incidents because each was relevant evidence of Appellants’ involvement in an ongoing alien-smuggling conspiracy. See United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir.2004).
2. The district court did not violate Appellants’ rights to due process or to present a defense, because the district court’s exclusion of Rene Martinez Gardoza’s testimony was neither arbitrary nor disproportionate to Rule 403’s purposes. *257See United States v. Kincaid-Chauncey, 556 F.3d 923, 934-35 (9th Cir.2009). Excluding evidence of minimal exculpatory value that presented a substantial danger of unfair prejudice “serve[d] important trial management interests by keeping the trial focused on germane issues.” Id. at 935.
3. Under plain error review, there was sufficient evidence to support Appellants’ “bringing to” convictions under an aiding and abetting theory. The facts support a finding that the initial footguides who brought the aliens to the United States had not ceased transporting them when Appellants became involved. See United States v. Lopez, 484 F.3d 1186, 1187-88 (9th Cir.2007) (en banc).
4. Under plain error review, there was sufficient evidence to support Appellants’ convictions for conspiring to bring aliens to the United States. A reasonable jury could conclude that Appellants agreed to bring aliens to the United States, because Appellants’ involvement occurred before the “bringing to” crime ended. See United States v. Hernandez-Orellana, 539 F.3d 994, 1007 (9th Cir. 2008). A reasonable jury could also conclude that Appellants acted in furtherance of this agreement when they delivered a van used to smuggle illegal aliens. See Lopez, 484 F.3d at 1188, 1197. Finally, a reasonable jury could conclude that a co-conspirator acted for the purpose of private financial gain in conspiring to bring illegal aliens to the United States. See United States v. Mejia-Luna, 562 F.3d 1215, 1220 (9th Cir.2009). Even if the district court erred in failing to require that the evidence prove that Appellants acted for their own financial gain, such error is not plain. See United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (“Plain error ... is error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection.”) (citation omitted).
5. The district court complied with Rule 32 of the Federal Rules of Criminal Procedure by stating its resolution of the disputed issue regarding the number of aliens smuggled. See United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007), as amended.
6. In applying sentencing enhancements pursuant to U.S.S.G. § 2Ll.l(b)(2), the district court did not plainly err in applying the preponderance of the evidence standard of proof because the sentencing factor did not have an extremely disproportionate effect on Appellants’ sentences relative to the offense of conviction. See United States v. Felix, 561 F.3d 1036, 1045 (9th Cir.2009). Furthermore, the district court did not plainly err in finding that Bonilla helped smuggle twenty-five to ninety-nine aliens. However, the district court plainly erred in finding that Sanchez smuggled at least one hundred aliens based on four smuggling incidents over five years and Sanchez’s immense gambling losses. Such conjecture is insufficient to support application of a sentencing enhancement. See United States v. Eirven, 987 F.2d 634, 636 (9th Cir.1993). Rather, the district court was limited to an enhancement consistent with the evidence presented at trial, i.e., at least fifty-four aliens.
7. The district court did not plainly err in applying the bodily injury sentencing enhancements pursuant to U.S.S.G. § 2Ll.l(b)(7). Any error in failing to analyze the foreseeability of the van driver’s actions at the sentencing hearing, see U.S.S.G. § 1B1.3(a)(1)(B); United States v. Zelaya, 114 F.3d 869, 871 (9th Cir.1997), did not prejudice Appellants because of the apparent foreseeability of the driver’s actions. See United States v. Gonzalez, 492 F.3d 1031, 1040 (9th Cir.2007).
*2588. Bonilla’s sentence was reasonable because, as discussed above, the district court did not commit a significant procedural error in sentencing Bonilla. See United States v. Pham, 545 F.3d 712, 716 (9th Cir.2008). As discussed above, the district court committed significant procedural error in sentencing Sanchez, requiring resentencing. See id.
9. Because the record is not sufficiently developed to address Sanchez’s ineffective assistance of counsel claim, we will not review the challenge on direct appeal. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1260 (9th Cir.2005).
Bonilla’s conviction and sentence are AFFIRMED.
Sanchez-Espinoza’s conviction is AFFIRMED. Sanchez-Espinoza’s sentence is VACATED and REMANDED for resentencing applying the enhancement for at least fifty-four aliens smuggled.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470892/ | MEMORANDUM *
Thomas Preciado appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his convictions for murder, second degree robbery, and second degree burglary. We have jurisdiction pursuant to 28 U.S.C. § 2253 and review the district court’s denial of the petition de novo. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). We affirm.
The California Court of Appeal did not unreasonably apply federal law when it affirmed the trial court’s denial of discovery of malpractice-related hospital records. There is no clearly established federal right to compel pretrial discovery in a situation like Preciado’s, particularly since the discovery he requested would not have provided him with a defense under California law and the trial judge left open the possibility of in camera review of the records. See Pennsylvania v. Ritchie, 480 U.S. 39, 53, 64-65, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see also Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir.1992) (“A defendant has no right ... to present irrelevant evidence.”).
It was likewise reasonable for the California Court of Appeal to hold that limiting Preciado’s cross-examination of Ms. Dhillon’s treating physician didn’t violate the Confrontation Clause. Any possible malpractice wouldn’t have risen to the level necessary to provide Preciado with a defense under California law, and there is no clearly established right to irrelevant cross-examination.
The Court of Appeal did not unreasonably affirm the trial court’s denial of *236Preciado’s motion to suppress his videotaped statements to the police. The state court was not unreasonable in ruling the statement to have been voluntary under the totality of circumstances. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The Court of Appeal also did not unreasonably affirm the denial of the motion to suppress as to Preciado’s statements to his mother, because those statements were never introduced at trial.
Because Preciado failed to raise a colorable claim for relief, the district court did not abuse its discretion in denying him an evidentiary hearing. See Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.2001).
We decline to consider Preciado’s jury instruction claims because they were not included in the district court’s certificate of appealability and he has not made a substantial showing of the denial of a constitutional right; as Preciado concedes in his brief, there is no clearly established requirement that courts give a lesser-included offense instruction in non-capital cases.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470897/ | MEMORANDUM *
Xiao Yu Xie, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review only the asylum determination1 for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), treating Xie’s testimony as credible, Kalu-bi v. Ashcroft, 364 F.3d 1134, 1138-39 (9th Cir.2004). We grant the petition for review.
The BIA concluded that Xie did not establish a well-founded fear of persecution because the government had demonstrated that it was reasonable for him to relocate within China. Substantial evidence does not support the BIA’s conclusion. Xie left Fujian Province with his mother and father, who sought to escape the government’s enforcement of population control policies. They took up residence in the distant province of Sichuan. Learning of Xie’s early marriage and his own growing family, Fujian officials traveled to Sichuan to look for Xie and his wife, forcing them to move to avoid detection and causing Xie to flee China shortly thereafter. These undisputed facts establish persecution by the government on account of Xie’s political opinion under 8 U.S.C. § 1101(a)(42)(B) (“[A] person who ... has been persecuted for failure or refusal to undergo [a population control] procedure ... shall be deemed to have been persecuted on account of political opinion.... ”). This past persecution gave rise to a presumption that Xie had a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). Because a unit of the Chinese government persecuted Xie, relocation within China was presumed not to be reasonable, and the government bore the burden of rebutting that presumption by a preponderance of the evidence. Id. § 1208.13(b)(3)(ii). Because Fujian officials amply demonstrated their willingness to search in a distant province for Xie as a violator of Fujian population control policy, no reasonable fact finder could conclude that the government carried its burden. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1090-91 (9th Cir.2005) (holding that internal relocation was not reasonable where credible testimony and the country report indicated that petitioner’s health and status as a homosexual would prevent safe relocation within Mexico). Xie accordingly has shown that he is statutorily eligible for asylum.
Therefore, we grant the petition for review and remand for a discretionary determination whether to grant Xie asylum. See Navas v. INS, 217 F.3d 646, 655 (9th Cir .2000).
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. We do not review the withholding of removal decision because, although Xie mentions withholding at the end of his brief, he does not state it as an issue on appeal and does not argue it in his brief. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1992). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470899/ | MEMORANDUM *
Having lost his action on the merits under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., Plaintiff-Appellant Wayne Ritchie seeks to reverse the district court’s award of costs to Defendant-Appel-lee United States. Ritchie argues that the district court erred in denying his motion to deny costs to the government and in denying his motion for discovery of alleged documents containing proposed deposition questions and answers. As the facts and procedural history are familiar to the par*239ties, we do not recite them here except as necessary to explain our disposition.
Generally, costs are awarded to the prevailing party. See Fed.R.Civ.P. 54(d) (“[CJosts — other than attorney’s fees— should be allowed to the prevailing party.”); Ass’n of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir.2000). However, we have found an award of costs to be an abuse of discretion in limited circumstances. See, e.g., Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079-80 (9th Cir.1999). Ritchie makes three arguments for why we should so find in this case.
1.The Government’s Answer and Amended Answer
Ritchie first argues that the government engaged in misconduct by filing answers that it knew to be false. Specifically, he argues that, in light of various publicly available books and articles documenting the CIA’s MKULTRA program, the government must have known that Feldman was involved in the CIA drugging program. While deliberate ignorance can constitute knowledge, Ritchie fails to show by clear and convincing evidence that the government was deliberately ignorant or that it perpetrated a “fraud on the court.” See Phoceene Sous-Marine, S.A v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 n. 13 (9th Cir.1982). In the previous appeal on the merits, we held that “[t]he district court’s finding that Ritchie failed to prove by clear and convincing evidence that the government acted in bad faith in relying on Feldman’s deposition testimony is supported by the record.” Ritchie v. United States, 451 F.3d 1019, 1026 (9th Cir.2006) (citation omitted). This reasoning also controls here; the district court did not abuse its discretion in denying Ritchie’s motion to review costs.
2. Feldman’s Second Deposition
In the trial on the merits, the district court penalized the government’s deposition misconduct by requiring it to pay for the second deposition, a sanction that was upheld on appeal. Because the misconduct was not egregious and the government had previously been sanctioned, the district court had discretion to deny Ritchie’s motion to review costs. Ass’n of Mexican-American Educators, 231 F.3d at 592; see also Richins v. Deere & Co., 229 F.R.D. 189, 193 (D.N.M.2004) (holding that denial of costs was inappropriate where the prevailing party had already been sanctioned for discovery abuses). The district court did not abuse that discretion.
3. Proposed Deposition Answers
Finally, the district court’s decision to discount the story of the government attorneys’ giving Feldman proposed deposition answers was not clearly erroneous. The two attorneys responsible for deposing Feldman submitted declarations denying giving Feldman proposed answers. See United States v. Norwood, 420 F.3d 888, 895 (8th Cir.2005) (stating that the existence of documents is a question of fact, subject to review for clear error). AUSA Kenney also submitted personal records showing that she did not stay at the hotel where Ritchie alleges that the deposition preparation took place. In addition, Feldman later retracted the story.
As this allegation lacks evidentiary support, the district court did not abuse its discretion in denying Ritchie’s motion for review of costs. Cf. United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Thus, it was also not an abuse of discretion to deny the motion to compel discovery for documents which the district court determined likely did not exist. In addition, because Ritchie moved to compel prior to making a formal request for dis*240covery, the district court was within its discretion to deny the motion based on Ritchie’s failure to follow Federal Rule of Civil Procedure 37(a)(3)(B).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470901/ | *241MEMORANDUM ***
Dr. John C. Perry and Teddy Bear Obstetrics & Gynecology P.S. appeal the district court’s order, pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissing their complaint with prejudice for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not err when it dismissed the complaint. The complaint fails to plead sufficient facts to make it plausible that the defendants’ termination of Perry’s privileges at Kadlec Medical Center constituted an injury to competition in the market-at-large, rather than an injury to Perry personally. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Moreover, the district court did not abuse its discretion when it dismissed the complaint with prejudice. In his response to the defendants’ motion to dismiss, Perry listed the additional facts he could plead in an amended complaint. The district court considered these facts and concluded correctly that they did not allege an injury to competition and so any amendment to the complaint would be futile. See Kendall v. Visa U.S A., Inc., 518 F.3d 1042, 1051 (9th Cir .2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470903/ | MEMORANDUM * AND ORDER
Ronald V. Weilbacher alleges that the district court erred in holding he could not recover additional money for his loss of consortium and society claims under his insurance policy with the Defendant. The policy states that a maximum of $100,000 will be reimbursed “for all damages due to a bodily injury to one (1) person.” “The bodily injury Limit of Liability ... for ‘each person’ includes the total of all claims made for such bodily injury and all claims derived from such bodily injury, including ... loss of society ... [and] loss of consortium.... ”
Weilbacher’s pain and damages derived from the bodily injury that caused his daughter’s death; he did not experience a unique bodily injury. See State Farm Mut. Auto. Ins. Co. v. Dowdy, 192 P.3d 994, 998 (Alaska 2008). The insurance company paid his daughter’s estate the full $100,000 for her bodily injury and death. Under the policy’s “each person” limit, he can recover no more.
Weilbacher next alleges that the “each person” limit in the policy is so vague and ambiguous that it violates state public policy. We interpret insurance contracts by looking to “1) the language of the disputed policy provisions; 2) the language of other policy provisions; 3) relevant extrinsic evidence; and 4) case law interpreting similar provisions.” State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1047 (Alaska 1996). A plain reading of the policy’s “each person” limit reveals no ambiguity in its terms. The limit does not conflict with Alaska law nor with public policy.
The Appellant’s motion for certification of question to Alaska Supreme Court is DENIED.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470905/ | *244MEMORANDUM *
Autotel has no right of action against the individual defendants under Bivens because the Administrative Procedure Act provides an adequate alternative remedy for its claims. See W. Radio Servs. v. U.S. Forest Serv. 578 F.3d 1116 (9th Cir.2009).
Because Autotel appealed the BLM’s denial of Autotel’s application for a right-of-way to construct a new tower on Frenchman Mountain to the Interior Board of Land Appeals (IBLA), the administrative action challenged in Autotel’s complaint was not a final action. 5 U.S.C. § 704; accord Puget Sound Energy, Inc. v. United States, 310 F.3d 613, 625 (9th Cir.2002) (“[I]f an initial agency action may be modified or reversed during administrative reconsideration or review it is rendered non-final while such review is pending.”). “We may affirm the district court on any basis supported by the record.” See Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 633 (9th Cir.2008). We therefore conclude that the district court properly dismissed Autotel’s challenge to this agency action.1
The BLM’s denial of Autotel’s application for a right-of-way to move its existing tower or construct a new “auxiliary” tower on Black Mountain was not arbitrary and capricious under 5 U.S.C. § 706(2)(A). Autotel’s arguments that the proposed new tower was a “minor auxiliary facility” and that the proposed location in the Sloan Canyon National Conservation Area was “not pristine” are policy disagreements. Autotel produces no evidence that the BLM “relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th Cir.1996).
Nor did IBLA act arbitrarily, capriciously, or othexwise violate 5 U.S.C. § 706(2) when it applied its own regulations and concluded that Autotel failed to timely object to Titan’s proposed right-of-way after being propexdy served with notice under 43 C.F.R. § 1810.2(b) and therefore lacked standing to appeal the BLM’s decision under 43 C.F.R. § 4.410.
Finally, the BLM did not unlawfully withhold or unreasonably delay action under 5 U.S.C. § 706(1) when it failed to take action to prevent Titan Towers’s facilities fi'om interfering with Autotel’s towers. Autotel’s claims that Titan Towers’s facilities were “unauthorized” are beside the point: Section VI.F of the Site Plan is the only px'ovision Autotel points to that might plausibly impose a legal obligation on the BLM to take some “discrete agency action,” see Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), and Autotel has failed to establish a genuine issue of material fact as to whether Titan Towers caused any actual interference.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Accordingly, AutoteTs appeal of the district court’s denial of its motion to supplement the administrative record is moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470908/ | MEMORANDUM *
Deljeet Singh Goraya, a native and citizen of India, seeks review of the Board of Immigration Appeals (“BIA”) decision adopting and affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and request for withholding of removal and protection under the Convention Against Torture (“CAT”). This court has jurisdiction over final orders of removal under 8 U.S.C. § 1252(a)(1). We review questions of law de novo, Hernandez-Gil v. Gonzales, 476 F.3d 803, 804 n. 1 (9th Cir.2007), and factual findings for substantial evidence, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). “[W]e will not defer to BIA decisions that conflict with circuit precedent.” Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). We grant Goraya’s petition for review.
The IJ declared that “the Court has no idea when respondent last entered the United States,” and therefore denied Gora-ya’s asylum application as untimely because he had failed to prove by clear and convincing evidence that he had filed an application within one year of entry. The IJ further determined that Goraya was not *248credible, citing “substantial and material areas of his testimony which were vague and lacking in detail,” and “inconsistencies going to the heart of’ Goraya’s claim. The BIA adopted only these two rulings, finding it unnecessary to reach the IJ’s alternative ruling on the merits. See Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).
I.
As an initial matter, we hold that the IJ erred in pretermitting Goraya’s asylum claim. This court has jurisdiction over questions of law with respect to the timeliness of asylum applications. Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007). The IJ applied an erroneous legal standard in requiring Goraya to prove his date and manner of entry, which was alleged in the Notice to Appear and so was an undisputed fact not subject to the evidentiary requirements of 8 U.S.C. § 1158(a)(2)(B). See Hakopian v. Mukasey, 551 F.3d 843 (9th Cir.2008). Contrary to the government’s assertion that Goraya waived this claim, he requested remand on the timeliness issue and specifically argued that there was no factual dispute about his entry date. As it was error under Hako-pian to pretermit Goraya’s asylum claim for failure to prove his amval date, we grant the petition with respect to the BIA’s ruling on the timeliness of Goraya’s petition for asylum.
II.
We review the IJ’s adverse credibility determination for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). The IJ must have a “legitimate articulable basis” to question an asylum seeker’s testimony and provide “a specific, cogent reason” for doubting its veracity. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002) (internal citations and quotations omitted). Here, the IJ did not substantiate his adverse credibility ruling in accordance with our caselaw.
The IJ’s conclusion that Goraya’s testimony regarding his arrests, and his cousin’s political activities and encounter with the police, were “vague and lacking in material detail” is not supported by substantial evidence. Goraya provided ample detail about his own arrest and custodial abuse, including the police station where he was detained and the fact that he was beaten with a baton and belts on his legs and arms. The declaration Goraya submitted with his application for asylum contained a fairly detailed description of his cousin’s political activity, arrest and death in police custody. Because neither the IJ nor counsel asked for more information regarding his own arrest or his cousin’s, the finding that his testimony lacked detail was unsupported. See Zahedi v. INS, 222 F.3d 1157, 1167 (9th Cir.2000).
The IJ also found that Goraya’s testimony that he has had very little contact with his father since their joint arrest conflicted with his testimony that his father arranged for his release from jail and his departure to Dubai and subsequently to the United States. But the IJ did not identify, or instruct Goraya to clarify, this supposed inconsistency during the hearing. The law of our circuit requires that the petitioner be given an opportunity to explain any perceived inconsistencies, see Quan v. Gonzales, 428 F.3d 883, 886 (9th Cir.2005), and the IJ must consider and address the petitioner’s explanation for the discrepancy, Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.2004). Where, as here, the IJ has based an adverse credibility determination on purportedly material inconsistencies without first giving the petitioner an opportunity to explain, we must reverse. Chen v. Ashcroft, 362 F.3d 611, *249618 (9th Cir.2004). As neither the government nor the IJ identified the alleged discrepancy with respect to Goraya’s father during the hearing, the IJ erred in relying on it to reach an adverse credibility determination.
Nonetheless, we would affirm the BIA’s decision if the adverse credibility finding also rested on other grounds that were supported by substantial evidence. “So long as one of the identified grounds is supported by substantial evidence and goes to the heart of [Goraya’s] claim of persecution, we are bound to accept the IJ’s adverse credibility finding.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003); Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). In this case, however, while the IJ articulated concerns about Goraya’s identity documents, these concerns were not the basis for the adverse credibility finding. Our review of adverse credibility determinations “focuses only on the actual reasons relied upon by the IJ.” Marcos v. Gonzales, 410 F.3d 1112, 1116 (9th Cir. 2005).
“Applying the deemed credible rule” in a case such as this “when the IJ and BIA did not allow [Goraya] the opportunity to explain inconsistencies going to the heart of his claim would grant excessive deference to [Goraya’s] future and now unknown explanations of the perceived inconsistencies.” Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir.2009). Moreover, this appears to be a situation in which “there may be other grounds for rejecting credibility.” Id.
Accordingly, we grant the petition and remand “on an open record to give the agency the opportunity to evaluate [Gora-ya’s] credibility while allowing him to explain [any] as-yet-unexplained inconsistencies” in his testimony. Id. at 1096. As the BIA has not evaluated Goraya’s eligibility for asylum, withholding of removal, or relief under CAT independently from its time-bar and adverse credibility findings, “we also give the agency an opportunity to make those determinations in the first instance.” Id.
PETITION FOR REVIEW GRANTED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470909/ | KLEINFELD, J.,
dissenting:
I respectfully dissent.
The immigration judge found Goraya not credible, in part based on documents he presented to the court, and in part based on inconsistencies in his testimony regarding his father’s location from 1999 to 2001. The record does not compel the conclusion that the documents are authentic or that Goraya’s testimony was consistent, so I would deny the petition for review.
Goraya presented various identification documents, including a driver’s license with the word “signtature” misspelled and the wrong birthdate and home address, from his parents in India. But they were mailed to New York instead of Seattle. Goraya was given a chance to explain this and could not. Nor could Goraya tell the immigration judge to whom in New York the documents were sent. The judge concluded “[t]his is not a reasonable foundation which enhanced the Court’s confidence in either the credibility of the respondent or the authenticity of the documents.” The IJ’s conclusion is reasonable; the typographical errors and inconsistencies in the documents, and the unexplained New York connection, support the inference that they are not what they purport to be, and the record does not compel a contrary conclusion.
Goraya claims persecution because of an imputed political opinion due to his father’s activities. Goraya testified that after he *250and his father were both arrested in 1998, they both left home. When asked “from 1999 until today, how often is [your father] coming home?,” Goraya responded that “[h]e hasn’t come for, I mean, he just calls, he hasn’t come.” When he was arrested in December 2001, Goraya said that his father “came and got me released.” If Gor-aya’s father was home in 2001, that contradicts his testimony that the father had not come home since 1999. And if the father was able to come to the police station to get Goraya released in 2001, that casts doubt on the claim that the police were persecuting Goraya based on his father’s activities. In light of this discrepancy and the documents, the record does not compel a conclusion contrary to the immigration judge. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470915/ | MEMORANDUM **
Terry Lee Steward (“Steward”) appeals from the district court’s pre-trial order to involuntarily medicate him in order to render him competent to stand trial. Steward is charged with threatening to assault and threatening to murder two United States judges with the intent to impede, intimidate, interfere with, and retaliate against them while they were engaged in, and on account of, the performance of their official duties. 18 U.S.C. § 115(a). The district court’s order was appealable as a collateral order, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Sell v. United States, 539 U.S. 166, 176-77, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).
Steward argues that the district court erred when it concluded, under the first Sell factor, that the Government’s interest in prosecution was sufficiently important to permit him to be involuntarily medicated and rendered competent to stand trial. Sell, 539 U.S. at 180, 123 S.Ct. 2174 (stating that “a court must find that important governmental interests are at stake” before issuing an order permitting the Government to involuntarily medicate a criminal defendant to render him competent to stand trial, (emphasis in the original)).1 We “review the district court’s determinations with regard to the first Sell factor de novo.” United States v. Hernandez-Vasquez, 513 F.3d 908, 915-16 (9th Cir.2008).
“The Government’s interest in bringing to trial an individual accused of a serious crime is important.” Sell, 539 U.S. at 180, 123 S.Ct. 2174. “Courts ... must consider the facts of the individual case in evaluating the Government’s interest in prosecution.” Id. We have held that the starting point in analyzing the seriousness of the crime is the likely sentencing guidelines range, although that is not the only factor to be considered. Hernandez-Vasquez, 513 F.3d at 919. Furthermore, “[sjpecial circumstances may lessen the importance of [the Government’s] interest.” Sell, 539 *254U.S. at 180, 123 S.Ct. 2174. Such special circumstances include the possibility that if the defendant does not voluntarily submit to medication, he would be civilly confined, thereby “diminishing] the risks that ordinarily attach to freeing without punishment one who has committed a serious crime.” Id. The “possibility that the defendant has already been confined for a significant amount of time” is another special circumstance that is appropriate for the court to consider. Id.; see also Hernandez-Vasquez, 513 F.3d at 918 (citing Sell and explaining that relevant circumstances to be considered in evaluating the Government’s interest in prosecution include “the time a defendant has served while awaiting trial and the possibility of future civil confinement.”)
Taking into consideration the individual circumstances of this case, we affirm the finding of the district court that important governmental interests in prosecution exist. Sell, 539 U.S. at 180, 123 S.Ct. 2174. The undisputed advisory guidelines range is thirty-three to forty-one months, which is not insubstantial. We also recognize that the nature of the offense is severe, and that evidence shows a substantial possibility that Steward would likely not meet the criteria for civil commitment. [ER 27, 139] Hence, “the risks that ordinarily attach to freeing without punishment one who has committed a serious crime” would not be diminished in this case. Sell, 539 U.S. at 180, 123 S.Ct. 2174. We recognize that Steward has spent a considerable amount of time in pre-trial detention, a factor which weighs against the Government interest in prosecution. We agree with the district court, however, that in this case the amount of time Steward has spent in detention does not lessen the importance of the Government’s interest in prosecution. See Sell, 539 U.S. at 180, 123 S.Ct. 2174. On the facts presented here, the charged crimes are serious, and the Government has an important interest in prosecution.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The three remaining Sell factors require the trial court to find: (1) "that involuntary medication will significantly further those concomitant state interests”; id. at 181, 123 S.Ct. 2174, (2) "that involuntary medication is necessary to further those interests”; id., and (3) "that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition.” Id. (emphases in the original). Steward does not appeal the district court’s findings with regard to these three factors. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470916/ | MEMORANDUM **
Pedro Sanchez-Espinoza (Sanchez) and Roy Jack Bonilla (Bonilla) appeal their convictions and sentences after being convicted in a joint trial of conspiracy to bring illegal aliens to the United States for financial gain, conspiracy to transport illegal aliens, three counts of bringing illegal aliens to the United States for financial gain, and three counts of transporting illegal aliens.
1. The district court did not err by admitting evidence of prior smuggling incidents because they were inextricably intertwined with the conspiracy charges. See United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir.2004). The district court did not abuse its discretion under Rule 403 in admitting the prior incidents because each was relevant evidence of Appellants’ involvement in an ongoing alien-smuggling conspiracy. See United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir.2004).
2. The district court did not violate Appellants’ rights to due process or to present a defense, because the district court’s exclusion of Rene Martinez Gardoza’s testimony was neither arbitrary nor disproportionate to Rule 403’s purposes. *257See United States v. Kincaid-Chauncey, 556 F.3d 923, 934-35 (9th Cir.2009). Excluding evidence of minimal exculpatory value that presented a substantial danger of unfair prejudice “serve[d] important trial management interests by keeping the trial focused on germane issues.” Id. at 935.
3. Under plain error review, there was sufficient evidence to support Appellants’ “bringing to” convictions under an aiding and abetting theory. The facts support a finding that the initial footguides who brought the aliens to the United States had not ceased transporting them when Appellants became involved. See United States v. Lopez, 484 F.3d 1186, 1187-88 (9th Cir.2007) (en banc).
4. Under plain error review, there was sufficient evidence to support Appellants’ convictions for conspiring to bring aliens to the United States. A reasonable jury could conclude that Appellants agreed to bring aliens to the United States, because Appellants’ involvement occurred before the “bringing to” crime ended. See United States v. Hernandez-Orellana, 539 F.3d 994, 1007 (9th Cir. 2008). A reasonable jury could also conclude that Appellants acted in furtherance of this agreement when they delivered a van used to smuggle illegal aliens. See Lopez, 484 F.3d at 1188, 1197. Finally, a reasonable jury could conclude that a co-conspirator acted for the purpose of private financial gain in conspiring to bring illegal aliens to the United States. See United States v. Mejia-Luna, 562 F.3d 1215, 1220 (9th Cir.2009). Even if the district court erred in failing to require that the evidence prove that Appellants acted for their own financial gain, such error is not plain. See United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997) (“Plain error ... is error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection.”) (citation omitted).
5. The district court complied with Rule 32 of the Federal Rules of Criminal Procedure by stating its resolution of the disputed issue regarding the number of aliens smuggled. See United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007), as amended.
6. In applying sentencing enhancements pursuant to U.S.S.G. § 2Ll.l(b)(2), the district court did not plainly err in applying the preponderance of the evidence standard of proof because the sentencing factor did not have an extremely disproportionate effect on Appellants’ sentences relative to the offense of conviction. See United States v. Felix, 561 F.3d 1036, 1045 (9th Cir.2009). Furthermore, the district court did not plainly err in finding that Bonilla helped smuggle twenty-five to ninety-nine aliens. However, the district court plainly erred in finding that Sanchez smuggled at least one hundred aliens based on four smuggling incidents over five years and Sanchez’s immense gambling losses. Such conjecture is insufficient to support application of a sentencing enhancement. See United States v. Eirven, 987 F.2d 634, 636 (9th Cir.1993). Rather, the district court was limited to an enhancement consistent with the evidence presented at trial, i.e., at least fifty-four aliens.
7. The district court did not plainly err in applying the bodily injury sentencing enhancements pursuant to U.S.S.G. § 2Ll.l(b)(7). Any error in failing to analyze the foreseeability of the van driver’s actions at the sentencing hearing, see U.S.S.G. § 1B1.3(a)(1)(B); United States v. Zelaya, 114 F.3d 869, 871 (9th Cir.1997), did not prejudice Appellants because of the apparent foreseeability of the driver’s actions. See United States v. Gonzalez, 492 F.3d 1031, 1040 (9th Cir.2007).
*2588. Bonilla’s sentence was reasonable because, as discussed above, the district court did not commit a significant procedural error in sentencing Bonilla. See United States v. Pham, 545 F.3d 712, 716 (9th Cir.2008). As discussed above, the district court committed significant procedural error in sentencing Sanchez, requiring resentencing. See id.
9. Because the record is not sufficiently developed to address Sanchez’s ineffective assistance of counsel claim, we will not review the challenge on direct appeal. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1260 (9th Cir.2005).
Bonilla’s conviction and sentence are AFFIRMED.
Sanchez-Espinoza’s conviction is AFFIRMED. Sanchez-Espinoza’s sentence is VACATED and REMANDED for resentencing applying the enhancement for at least fifty-four aliens smuggled.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470918/ | MEMORANDUM *
Plaintiffs Gabana Gulf Distribution, Ltd. and Gabana Distribution, Ltd. (collectively, “Gabana”) appeal the district court’s grant of summary judgment in favor of Defendant Gap International Sales, Inc. on Ga-bana’s breach of contract claim. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court correctly concluded that the material facts are not disputed and the contract between Gabana and Gap was not a franchise agreement under California law. The undisputed facts show that Gabana was merely a distributer or wholesaler of Gap products, but not substantially associated with Gap’s trademarks. In fact, the contrary is the case: Gabana was expressly prohibited by contract from associating itself with Gap’s trademarks beyond selling its merchandise.
The dissent supports its conclusion with non-California cases that we do not find persuasive. The Third Circuit’s conclusion that the product-trademark distinction was “ephemeral” was limited to “the context of [that] case” in which (1) the franchisee was the sole distributor of the franchisor’s products in the relevant region for 30 years, (2) the franchisee’s customer’s testified that they considered the franchisee and franchisor “one and the same,” and (3) some of the franchisee’s employees wore the franchisor’s uniforms. Cooper Distrib. Co. v. Amana Refrigeration, Inc., 63 F.3d 262, 267, 271, 273 (3d Cir.1995). To whatever extent the dissent is supported by Wright-Moore Corp. v. Ricoh Corp., 908 F.2d 128, 135 (7th Cir.1990), we note that the Seventh Circuit reversed course when analyzing the very same statute in Hoosier Penn Oil Co. v. Ashland Oil Co., 934 F.2d 882, 886 (7th Cir.1991). There, the comb rejected the argument that merely selling a product with a trademark attached created a substantial association with that trademark. Id.
Furthermore, Gabana did not establish that it paid a “franchise fee,” as distinguished from a mere purchase of product at fair market value. See Cal. Bus. & Prof.Code § 20007. By its own terms, the Excess Inventory Agreement purports to be a contract for the sale of goods. Gaba-na has not shown it to be anything other than that.
For these reasons, the district court correctly ruled that Gabana’s arrangement with Gap was not a “franchise” as defined by California Business and Professions Code section 20001.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470919/ | CLIFTON, Circuit Judge,
dissenting:
I respectfully dissent. I believe that the majority has misapprehended both the applicable law and the facts.
The element of California Business and Professions Code § 20001 requiring “substantial association” with a franchisor’s *260trade name or other commercial symbol must be analyzed from the perspective of the putative franchisee’s customers. See Kim v. Servosnax, Inc., 10 Cal.App.4th 1346, 1353, 1356-57, 13 Cal.Rptr.2d 422, 426, 427-28 (1992); see also Cooper Distrib. Co. v. Amana Refrigeration, Inc., 63 F.3d 262, 273 n. 10 (3d Cir.1995). The question is whether the distribution arrangement pursuant to the contract was such that those customers “associated” Gabana’s business operation with Gap’s reputation and goodwill. Kim, 10 Cal.App.4th at 1355-57, 13 Cal.Rptr.2d at 427-28; see also Cooper, 63 F.3d at 272-73 (substantial association exists where a distributor’s customers perceive that the manufacturer effectively endorses the quality of the product being distributed or otherwise vouches for the distributor’s activity).
The evidence strongly supports a conclusion that such a connection was perceived by Gabana’s customers, the retailers in the specified Middle Eastern nations who sold the Gap products to the ultimate consumers. Those retailers did not simply sell shirts, pants, and other products that just happened to bear a “Gap” label. If that was all they wanted to do, they could not even obtain those products. By Gap’s own description, the retailers had to be approved by Gap and were required to sell Gap products in specified “store-within-store” displays. Their stores were sometimes inspected by Gap personnel, and they received detailed instructions on how they were to achieve the “Gap look,” down to the precise color of paint to be used in the Gap display. The retailers used Gap advertising and other promotional material, available to them only via Gabana. In that context, I fail to understand how it can be concluded as a matter of undisputed fact that Gabana was viewed only as a source of products and was not substantially associated by its customers with Gap’s trademarks, trade name, and advertising. Those customers received much more than shirts from Gabana.
Gabana was the sole distributor for Gap’s labeled product line in the defined geographic region. In that context, any distinction between Gabana’s promotion of Gap’s product and its trademark is “ephemeral.” See Cooper, 63 F.3d at 273; Wright-Moore Corp. v. Ricoh Corp., 908 F.2d 128, 135 (7th Cir.1990). Franchise is a mutable concept, and in light of the protective purpose of California’s Franchise Relations Act, I would construe “substantial association” liberally to encompass situations like the one created by the distribution contract in this case. See Kim, 10 Cal.App.4th at 1355-56, 13 Cal.Rptr.2d at 427.
Nor do I share the majority’s view that the undisputed facts precluded Gabana’s claim that it paid a franchise fee. The district court made no such finding. Given a substantial record and Gabana’s assertions regarding the excess inventory purchase, I would leave that argument and the other alternative grounds offered on appeal by Gap to be parsed by the district court in the first instance. I would reverse the existing summary judgment and remand for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470922/ | MEMORANDUM **
North Star Steel Co. (“North Star”) filed a complaint with the Federal Energy-Regulatory Commission (FERC) alleging that eight wholesalers of electricity violated the Federal Power Act (FPA), §§ 205 *262and 206, 16 U.S.C. §§ 824d and e, by selling energy at unjust and unreasonable wholesale rates that were passed through to North Star. FERC dismissed the complaint and denied North Star’s request for rehearing. North Star now petitions for review.
We affirm FERC’s dismissal of North Star’s request for a direct refund on the ground that FERC lacks jurisdiction to order a refund to a retail purchaser. See 16 U.S.C. § 824(b)(1) (“The provisions of this subchapter shall apply to ... the sale of electric energy at wholesale in interstate commerce, but ... shall not apply to any other sale of electric energy ... ”).
We do not review North Star’s alternate request for a refund to Arizona Electric Power Cooperative, Inc. (“Arizona Electric”) because North Star failed to adequately present its objections to FERC on rehearing. See 16 U.S.C. § 825i (b) (“No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.”). A second petition for rehearing would have been the appropriate method for challenging FERC’s refusal to construe North Star’s complaint as having requested alternate remedies, or for challenging FERC’s instruction to seek relief in the California Refund Proceeding. Dep’t of Fish & Game v. Fed. Power Comm’n, 359 F.2d 165, 169 n. 2 (9th Cir.1966).
Accordingly, we AFFIRM.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470924/ | MEMORANDUM **
Plaintiffs Les Jankey, an individual with a physical disability, and Disability Rights Enforcement Education Services appeal the district court’s denial of their motion for judgment as a matter of law. Plaintiffs sued Defendants Los Burritos, Inc., Magda Bass, and Lakewood Development Properties under California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ.Code § 51. Plaintiffs alleged that Defendants failed to remove architectural barriers at a Los Burritos restaurant in North Hollywood, California, a place of public accommodation, in violation of the Unruh Act. After a trial on the merits, a jury found in favor of Defendants. Plaintiffs filed a motion for judgment as a matter of law, claiming that the district court erred in its instructions to the jury and that the jury’s verdict was wrong. The district *264court denied that motion. Plaintiffs timely appealed. Defendants filed a timely cross-appeal, arguing that California state law requires proof of “actual damages” in order for a plaintiff to receive statutory damages.
1. We review de novo a district court’s denial of a renewed motion for judgment as a matter of law. White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir.2002). A district court errs only if “the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury.” Id. (internal quotation marks omitted).
We also review de novo whether a jury instruction correctly states the law. Dang v. Cross, 422 F.3d 800, 804 (9th Cir.2005). If the instruction contains error, we review for harmless error. Id. at 805. An error is harmless if “it is more probable than not that the jury would have reached the same verdict had it been properly instructed.” Id. at 811 (internal quotation marks omitted).
After judgment entered in this case, the California Supreme Court held that a plaintiff who establishes a violation of the Americans with Disabilities Act need not prove intentional discrimination in order to obtain damages under the Un-ruh Act. Munson v. Del Taco, Inc., 46 Cal.4th 661, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009). Here, the district court instructed the jury that, in order to award damages on the Unruh Act claim, it must find that Plaintiff Janke/s disability “was a motivating factor” for Defendants’ denial of full and equal accommodations. The district court defined “motivating factor” as “something that moves the will and induces action.” Defining “motivating factor” in such a way may be read to require a showing of intentional discrimination. In light of Munson, therefore, the district court’s jury instruction was erroneous.
The error is not harmless because we do not know why the jury reached the verdict it did. The jury could have found that Jankey never visited Los Burritos at all, or the jury could have found that he did but that Los Burritos did not act intentionally. If the jury found the latter, which it very well might have, then the erroneous instruction affected the verdict.
2. With respect to Defendants’ cross-appeal regarding damages, we affirm. Contrary to Defendants’ assertions, California state law does not require a plaintiff to prove actual damages in order to obtain statutory damages. Rather, section 52(a) of the Unruh Act states:
Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.
Cal. Civ.Code § 52(a). In Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir.2000), we observed that section 52(a) “lists actual damages and statutory damages as two separate categories of damages that a plaintiff may recover.” We therefore held that “proof of actual damages is not a prerequisite to recovery of statutory minimum damages.” Id.
REVERSED and REMANDED on appeal; AFFIRMED on cross-appeal. Plaintiffs are awarded costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470928/ | MEMORANDUM *
Reginald Burns appeals his conviction for unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g), after trial by jury. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Burns, who is African-American, contends that the district court abused its discretion by refusing to ask questions about prospective jurors’ racial bias during voir dire. District judges have been accorded wide discretion in conducting voir dire. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (plurality opinion). The Supreme Court has established under its supervisory power over the federal courts, however, that when the external circumstances of a case create a reasonable possibility that racial or ethnic prejudice might affect the jury, voir dire questioning regarding racial or ethnic prejudice is required.1 Id. at 192,101 S.Ct. 1629.
Burns argues that the district court was required under Rosales-Lopez to ask questions regarding racial prejudice during voir dire because Burns is an African-American in Portland, Oregon, a predominately white city. We disagree. Burns presents no specific evidence of racial bias in Portland, and he failed even to raise the argument based on the racial makeup of the city in the district court.
Unsupported conjecture and assertions about the racial climate of the community that are not raised in the district court are insufficient to require overturning a defendant’s conviction under Rosales-Lopez. In United States v. Sarkisian, 197 F.3d 966 (9th Cir.1999), for example, the defendants argued that the district court had erred by failing to ask jurors if they had any biases against Armenians and Russians because of concerns that prospective jurors may perceive a connection to “gypsies.” Id. at 979 & n. 2. We rejected that argument because it was based purely on conjecture and thus was not sufficient to demonstrate *267that such questioning was required under Rosales-Lopez.2 Id.
Although it might have been preferable for the district court to ask prospective jurors questions on racial bias upon Burns’ request, see Rosales-Lopez, 451 U.S. at 191,101 S.Ct. 1629, the court did not abuse its discretion by declining to do so. To require specific questioning based on such generalized concerns would come close to creating a per se rule that such questioning is required whenever requested by a minority defendant in a predominantly white city. The Court in Rosales-Lopez rejected per se rules and required a case-by-case analysis of the circumstances to determine whether questions about racial prejudice were warranted. See id. at 191-92, 101 S.Ct. 1629. The district court’s general questioning during voir dire about prospective jurors’ ability to be impartial was sufficient, and the district court did not abuse its discretion by refusing to ask any questions related to racial prejudice.
Burns’s contention that the district court abused its discretion by refusing to ask prospective jurors questions about their bias against felons is also without merit. Specific questions to determine bias are generally not required without a further showing that there is a reasonable possibility that prospective jurors may harbor such a prejudice. See United States v. Jones, 722 F.2d 528, 530 (9th Cir.1983) (per curiam).3 Burns’s unsupported conjecture that prospective jurors might have thought “once a criminal, always a criminal” was not enough to show that there was a reasonable possibility that prospective jurors harbored a prejudice against felons. Thus, the district court did not abuse its discretion in refusing to ask prospective jurors questions about bias against felons.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. There are circumstances in which voir dire questioning about possible racial or ethnic bias is constitutionally required. These circumstances are present in cases in which “racial issues [are] 'inextricably bound up with the conduct of the trial.' ” Rosales-Lopez, 451 U.S. at 189, 101 S.Ct. 1629 (quoting Ristaino v. Ross, 424 U.S. 589, 597, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976)). No such circumstances were present in this case and Burns mounts no constitutional attack. Instead, Burns argues that the district court abused its discretion by failing to ask voir dire questions about possible racial or ethnic bias because such questioning was required under the Court’s supervisory powers.
. Other circuits have similarly applied the Rosales-Lopez external-circumstances test. See, e.g. United States v. Groce, 682 F.2d 1359, 1362 n. 1, 1363 (11th Cir.1982) (rejecting the argument that increasing racial tension and race riots throughout the State of Florida created external circumstances that necessitated voir dire questioning on racial bias).
. There are three instances in which specific questioning is required upon the defendant's request. These instances are:
(1) When the case carries racial overtones;
(2) when the case involves other matters concerning which either the local community or population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact ...; or (3) when the case involves other forms of bias ... which have become evident through experience with juries....
Jones, 722 F.2d at 529-30 (internal citations and quotation marks omitted). Prejudice against felons has not been held to fall within any of these three instances. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470930/ | MEMORANDUM **
DBSI Signature Place, LLC (DBSI), appeals the district court’s judgment in favor of BL Greensboro, L.P. (Greensboro), following a bench trial of disputes arising from the purchase by DBSI from Greensboro of an office building in North Carolina called Signature Place. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
DBSI contends the district court erred by holding that Greensboro did not breach the implied covenant of good faith and fair dealing in the parties’ contract when Greensboro obtained estoppel certificates from Signature Place tenants, because two tenants later sought reimbursement from DBSI for tenant improvements. Greensboro representatives testified that they did not think the estoppel certificates applied to tenant improvements. Further, DBSI did not offer evidence that Greensboro promised to pay for the improvements of the two tenants at issue, since payment was neither due nor asserted to be due at the time of closing. Therefore, the district court did not clearly err when it found that Greensboro acted in good faith with respect to the estoppel certificates. See L.K. Comstock & Co., Inc. v. United Eng’rs & Constructors, Inc., 880 F.2d 219, 221 (9th Cir.1989); Bledsole v. Johnson, 357 N.C. *269138, 579 S.E.2d 379, 382 (2003). This factual finding supports the district court’s conclusion that Greensboro did not breach the implied covenant of good faith and fair dealing.
The district court also did not err in holding that DBSI breached the contract when it failed to pay Greensboro a pro-ration of operating expenses and taxes for 2004 based on the closing date of the sale: September 30, 2004. Awarding Greensboro a 9/12 prorated share of operating expenses and taxes was a reasonable interpretation of the ambiguous contract provision governing proration. See Holshouser v. Shaner Hotel Group Props. One Ltd. P’ship, 134 N.C.App. 391, 518 S.E.2d 17, 23 (1999).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471139/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arthur Lee Hairston, Sr., appeals the district court’s order accepting the recommendation of the magistrate judge and denying his petition for a writ of audita querela. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hairston, No. 3:00-cr-00024-JPB-l, 2009 WL 891929 (N.D.W.Va. Mai-. 30, 2009). We deny Hairston’s motions for appointment of counsel and a certificate of appealability. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470921/ | CLIFTON, Circuit Judge,
dissenting:
I respectfully dissent. I believe that the majority has misapprehended both the applicable law and the facts.
The element of California Business and Professions Code § 20001 requiring “substantial association” with a franchisor’s *260trade name or other commercial symbol must be analyzed from the perspective of the putative franchisee’s customers. See Kim v. Servosnax, Inc., 10 Cal.App.4th 1346, 1353, 1356-57, 13 Cal.Rptr.2d 422, 426, 427-28 (1992); see also Cooper Distrib. Co. v. Amana Refrigeration, Inc., 63 F.3d 262, 273 n. 10 (3d Cir.1995). The question is whether the distribution arrangement pursuant to the contract was such that those customers “associated” Gabana’s business operation with Gap’s reputation and goodwill. Kim, 10 Cal.App.4th at 1355-57, 13 Cal.Rptr.2d at 427-28; see also Cooper, 63 F.3d at 272-73 (substantial association exists where a distributor’s customers perceive that the manufacturer effectively endorses the quality of the product being distributed or otherwise vouches for the distributor’s activity).
The evidence strongly supports a conclusion that such a connection was perceived by Gabana’s customers, the retailers in the specified Middle Eastern nations who sold the Gap products to the ultimate consumers. Those retailers did not simply sell shirts, pants, and other products that just happened to bear a “Gap” label. If that was all they wanted to do, they could not even obtain those products. By Gap’s own description, the retailers had to be approved by Gap and were required to sell Gap products in specified “store-within-store” displays. Their stores were sometimes inspected by Gap personnel, and they received detailed instructions on how they were to achieve the “Gap look,” down to the precise color of paint to be used in the Gap display. The retailers used Gap advertising and other promotional material, available to them only via Gabana. In that context, I fail to understand how it can be concluded as a matter of undisputed fact that Gabana was viewed only as a source of products and was not substantially associated by its customers with Gap’s trademarks, trade name, and advertising. Those customers received much more than shirts from Gabana.
Gabana was the sole distributor for Gap’s labeled product line in the defined geographic region. In that context, any distinction between Gabana’s promotion of Gap’s product and its trademark is “ephemeral.” See Cooper, 63 F.3d at 273; Wright-Moore Corp. v. Ricoh Corp., 908 F.2d 128, 135 (7th Cir.1990). Franchise is a mutable concept, and in light of the protective purpose of California’s Franchise Relations Act, I would construe “substantial association” liberally to encompass situations like the one created by the distribution contract in this case. See Kim, 10 Cal.App.4th at 1355-56, 13 Cal.Rptr.2d at 427.
Nor do I share the majority’s view that the undisputed facts precluded Gabana’s claim that it paid a franchise fee. The district court made no such finding. Given a substantial record and Gabana’s assertions regarding the excess inventory purchase, I would leave that argument and the other alternative grounds offered on appeal by Gap to be parsed by the district court in the first instance. I would reverse the existing summary judgment and remand for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470923/ | MEMORANDUM **
North Star Steel Co. (“North Star”) filed a complaint with the Federal Energy-Regulatory Commission (FERC) alleging that eight wholesalers of electricity violated the Federal Power Act (FPA), §§ 205 *262and 206, 16 U.S.C. §§ 824d and e, by selling energy at unjust and unreasonable wholesale rates that were passed through to North Star. FERC dismissed the complaint and denied North Star’s request for rehearing. North Star now petitions for review.
We affirm FERC’s dismissal of North Star’s request for a direct refund on the ground that FERC lacks jurisdiction to order a refund to a retail purchaser. See 16 U.S.C. § 824(b)(1) (“The provisions of this subchapter shall apply to ... the sale of electric energy at wholesale in interstate commerce, but ... shall not apply to any other sale of electric energy ... ”).
We do not review North Star’s alternate request for a refund to Arizona Electric Power Cooperative, Inc. (“Arizona Electric”) because North Star failed to adequately present its objections to FERC on rehearing. See 16 U.S.C. § 825i (b) (“No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do.”). A second petition for rehearing would have been the appropriate method for challenging FERC’s refusal to construe North Star’s complaint as having requested alternate remedies, or for challenging FERC’s instruction to seek relief in the California Refund Proceeding. Dep’t of Fish & Game v. Fed. Power Comm’n, 359 F.2d 165, 169 n. 2 (9th Cir.1966).
Accordingly, we AFFIRM.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470926/ | MEMORANDUM **
Plaintiffs Les Jankey, an individual with a physical disability, and Disability Rights Enforcement Education Services appeal the district court’s denial of their motion for judgment as a matter of law. Plaintiffs sued Defendants Los Burritos, Inc., Magda Bass, and Lakewood Development Properties under California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ.Code § 51. Plaintiffs alleged that Defendants failed to remove architectural barriers at a Los Burritos restaurant in North Hollywood, California, a place of public accommodation, in violation of the Unruh Act. After a trial on the merits, a jury found in favor of Defendants. Plaintiffs filed a motion for judgment as a matter of law, claiming that the district court erred in its instructions to the jury and that the jury’s verdict was wrong. The district *264court denied that motion. Plaintiffs timely appealed. Defendants filed a timely cross-appeal, arguing that California state law requires proof of “actual damages” in order for a plaintiff to receive statutory damages.
1. We review de novo a district court’s denial of a renewed motion for judgment as a matter of law. White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir.2002). A district court errs only if “the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury.” Id. (internal quotation marks omitted).
We also review de novo whether a jury instruction correctly states the law. Dang v. Cross, 422 F.3d 800, 804 (9th Cir.2005). If the instruction contains error, we review for harmless error. Id. at 805. An error is harmless if “it is more probable than not that the jury would have reached the same verdict had it been properly instructed.” Id. at 811 (internal quotation marks omitted).
After judgment entered in this case, the California Supreme Court held that a plaintiff who establishes a violation of the Americans with Disabilities Act need not prove intentional discrimination in order to obtain damages under the Un-ruh Act. Munson v. Del Taco, Inc., 46 Cal.4th 661, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009). Here, the district court instructed the jury that, in order to award damages on the Unruh Act claim, it must find that Plaintiff Janke/s disability “was a motivating factor” for Defendants’ denial of full and equal accommodations. The district court defined “motivating factor” as “something that moves the will and induces action.” Defining “motivating factor” in such a way may be read to require a showing of intentional discrimination. In light of Munson, therefore, the district court’s jury instruction was erroneous.
The error is not harmless because we do not know why the jury reached the verdict it did. The jury could have found that Jankey never visited Los Burritos at all, or the jury could have found that he did but that Los Burritos did not act intentionally. If the jury found the latter, which it very well might have, then the erroneous instruction affected the verdict.
2. With respect to Defendants’ cross-appeal regarding damages, we affirm. Contrary to Defendants’ assertions, California state law does not require a plaintiff to prove actual damages in order to obtain statutory damages. Rather, section 52(a) of the Unruh Act states:
Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.
Cal. Civ.Code § 52(a). In Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir.2000), we observed that section 52(a) “lists actual damages and statutory damages as two separate categories of damages that a plaintiff may recover.” We therefore held that “proof of actual damages is not a prerequisite to recovery of statutory minimum damages.” Id.
REVERSED and REMANDED on appeal; AFFIRMED on cross-appeal. Plaintiffs are awarded costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470927/ | GRABER, Circuit Judge,
dissenting:
I respectfully dissent with respect to the appeal, because I think it is clear that the jury found that Jankey did not visit the restaurant. Jankey made inconsistent statements at trial regarding his alleged visits to Los Burritos. No witness testified that he had been there. The only evidence he produced, other than his own inconsistent testimony, was a cash receipt, but it did not contain his name or any other identifying information. The jury sent written questions to the judge inquiring about the absence of various kinds of corroborative evidence as to Jankey’s alleged visits to the restaurant. In the circumstances, I am convinced that the jury found that Jankey never went to the restaurant and, therefore, that the instructional error was harmless under the standard set in Dang v. Cross, 422 F.3d 800, 811 (9th Cir.2005).1
. Because I find that the instructional error was harmless, I would not reach Defendants’ cross-appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470933/ | MEMORANDUM *
William Norkunas and the Disabled Rights Action Committee (“DRAC”), through its members Tamara Thompson and Robert Lee, appeal the district court’s decision dismissing their action under the Americans with Disabilities Act (“ADA”) for lack of subject matter jurisdiction. Ruling on defendant Wynn Las Vegas’s (“Wynn”) speaking motion filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district court held that Plaintiffs lacked standing to sue because they did not present evidence of a definite and concrete plan to avail themselves of the goods and services of Wynn Las Vegas in the future. We affirm.
Standing under Article III of the Constitution is a constitutional limitation on a court’s subject matter jurisdiction and cannot be granted by statute. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.2004) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Because Article III standing is a true jurisdictional question, rather than a question about the sufficiency of the claim, it is properly addressed in a Rule 12(b)(1) motion. Cetacean Cmty., 386 F.3d at 1174; see also Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 89, 95-96, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (explaining that a court’s “jurisdiction” is not defeated by the weakness of the merits of the claim unless the claim is “wholly insubstantial and frivolous,” which is a separate inquiry from Article III standing). A Rule 12(b)(1) motion can be made as a speaking motion — or factual attack — when the defendant submits evidence challenging the jurisdiction along with its motion to dismiss, Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979), including in ADA actions, see Savage v. Glendale Union High Sch., 343 F.3d 1036,1039-40 & n. 2 (9th Cir.2003). A proper speaking motion allows the court to consider evidence outside the complaint without converting the motion into a summary judgment motion. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Here, Wynn submitted a proper speaking motion, and supported it with evidence of Plaintiffs’ prior litigation history.
“Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039-40, n. 2. In a speaking motion, “[t]he court need not presume the truthfulness of the plaintiffs allegations.” Safe Air, 373 F.3d at 1039. Though Plaintiffs may have overcome a factual attack on standing based upon their prior litigation history through an affidavit or declaration specifying a definite intent to return, here Plaintiffs submitted no evidence beyond their complaint to the district court. See D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir.2008) (noting plaintiffs history of past litigation does not affect current litigation where plaintiff identified specific reasons supporting a definite intent to return to defendant’s business). Based upon this waiver, Plaintiffs did not carry their burden of proof to *271establish jurisdiction and the district court properly dismissed the action.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471140/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arthur Lee Hairston, Sr., appeals the district court’s order accepting the recommendation of the magistrate judge and denying his petition for a writ of audita querela. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hairston, No. 3:00-cr-00024-JPB-l, 2009 WL 891929 (N.D.W.Va. Mai-. 30, 2009). We deny Hairston’s motions for appointment of counsel and a certificate of appealability. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470934/ | MEMORANDUM *
Netscape Communications Corporation and its parent company, America Online, (collectively, “AOL”) appeal the district court’s grant of summary judgment in favor of St. Paul Mercury Insurance Company. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
As an initial matter, the district court correctly determined that the claims against AOL were “personal injury offenses” and within the policy’s coverage. The policy covered claims alleging that AOL had made known to any person or organization material that violated a person’s right of privacy. Although the underlying claims against AOL were not traditional breach of privacy claims, given that coverage provisions are broadly construed, see AIU Ins. Co. v.Super. Ct., 51 Cal.3d 807, 274 Cal.Rptr. 820, 799 P.2d 1253, 1264 (1990), the underlying complaints sufficiently alleged that AOL had intercepted and internally disseminated private online communications. While some cases have stated that coverage is triggered by a disclosure to a third party, they do so in dicta while deciding whether the personal injury clause covers invasion of “seclusion privacy” claims. See, e.g., ACS Sys., Inc. v. St Paul Fire & Marine Ins. Co., 147 Cal.App.4th 137, 53 Cal.Rptr.3d 786, 795-96 (Cal.Ct.App.2007). They do not address the policy’s language covering disclosure to “any” person or organization, which we find dispositive.
Although the district court correctly determined that the claims were “personal injury offenses,” it erred in how it interpreted the policy exclusion for “providing internet access to 3rd parties.” Because “Internet access” is commonly equated with a working Internet connection, the district court interpreted this exclusion too broadly. The SmartDownload utility does not provide an Internet connection, and, in fact, is useless without one; AOL therefore did not provide Internet access in making the SmartDownload utility available. Since the other enumerated activities included in the “online activities” exclusion also do not apply to the Smart-Download program, we reverse the district court’s grant of summary judgment and remand for further proceedings.
REVERSED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470936/ | MEMORANDUM *
North Slope Borough and the Alaska Eskimo Whaling Commission (collectively, “North Slope”) challenge the Minerals Management Service’s (“MMS”) decision not to prepare a supplemental environmental impact statement for a proposed oil and gas lease sale on a tract of the outer-continental shelf in the Beaufort Sea. The parties are familiar with the facts; we need not recount them here. The district court found that North Slope failed to show that MMS acted arbitrarily or capriciously. We agree, and affirm.
MMS satisfied its duties under the National Environmental Protection Act (“NEPA”) by taking the requisite “hard look” at new information concerning the impact of rising oil prices on the activities related to Lease Sale 202, and issuing a finding of no new significance. See North Idaho Cmty. Action Network v. U.S. Dep’t of Trans., 545 F.3d 1147, 1154-55 (9th Cir.2008).
*275The agency did not act arbitrarily or capriciously in determining no supplemental environmental impact statement was required to address new information about the impact of seismic activity on Inupiat subsistence activities. The impact of this new information, and the effectiveness of the existing and new proposed mitigation measures, were adequately analyzed in the 2006 Final Programmatic Environmental Assessment, which was incorporated by reference into the 2006 Environmental Assessment for Lease Sale 202. See, e.g., Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 530 (9th Cir.1994). Contrary to North Slope’s arguments, a mitigation plan need not be legally enforceable to comply with NEPA. Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Trans., 222 F.3d 677, 681 n. 4 (9th Cir.2000).
Nor did MMS act arbitrarily or capriciously in determining that the risks posed to polar bears by the cumulative effects of global warming could be mitigated. Once again, the record demonstrates that the agency took the requisite hard look at this new information. Though the agency’s mitigation plan is not yet complete, MMS discussed the mitigation measures “in sufficient detail to ensure that environmental consequences have been fairly evaluated!)]” See Westlands Water Dist. v. U.S. Dept, of Interior, 376 F.3d 853, 872 (9th Cir.2004) (quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir.1972)).
We reject North Slope’s contention that MMS violated NEPA by failing to disclose dissenting opinions from its scientists on whether a supplemental statement was required to address new information about the impacts of Lease Sale 202 on Arctic wildlife. The duty to disclose and respond to “responsible opposing viewpoints” imposed by 40 C.F.R. § 1502.9(b) applies only to environmental impact statements, not environmental assessments. Furthermore, North Slope failed to identify any specific new information which shows that Lease Sale 202 may have a significant impact on Arctic wildlife.
Finally, MMS’s use of significance thresholds in interpreting and applying the significance factors set forth in 40 C.F.R. § 1508.27 does not violate NEPA.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470939/ | PREGERSON, Circuit Judge,
Dissenting.
I dissent. The majority notes that the ALJ may consider inconsistent statements *279in the claimant’s testimony to determine credibility, but the ALJ must also give “specific, convincing reasons for rejecting the claimant’s subjective statements.” Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.2001). In this case, the ALJ’s reasons for discrediting Biekell’s testimony about the severity of his symptoms are unconvincing. Indeed, the primary inconsistency the ALJ relied on in discrediting Bickell’s testimony was the “dramatic shift” in Bickell’s reporting of his back pain-related symptoms between being cleared for work by Dr. Glassman on September 26, 2001, and his first interview with Dr. Seals on October 1, 2001. Yet Bickell was treated by Dr. Glassman, an orthopedist, solely for a leg injury, while Dr. Seals treated Bickell’s back pain. It was not inconsistent for each doctor to report exclusively on his or her area of expertise. See Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir.2006) (finding that it is not unreasonable to expect that physicians who focus on one area of the body should not express opinions on other areas of the body).
The ALJ also discredited Bickell’s testimony because it noted inconsistencies between Bickell’s interview with Dr. Moul-ton and the testimony of Bickell’s parents, even though Bickell’s mother corroborated many of Biekell’s statements to Dr. Moulton. For example, Bickell’s mother admitted that Bickell was beaten by his father as a child, but the ALJ found Bic-kell’s statement to Dr. Moulton inconsistent because Bickell’s father denied beating Bickell. I find it unconscionable to use statements of Bickell’s father, the alleged abuser, to discredit those of Bickell and his mother regarding Bickell’s father’s abuse.
The only reason the ALJ rejected Bic-kell’s treating doctors’ opinions of his disabling impairments was because they were based on Biekell’s subjective statements. Because the ALJ did not provide “convincing reasons for rejecting [Bickellj’s subjective statements,” Tonapetyan, 242 F.3d at 1148, I would find that the ALJ erred in rejecting Bickell’s treating doctors’ opinions. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998) (“[T]he ALJ may not reject [a treating doctor’s] opinion without providing specific and legitimate reasons supported by substantial evidence” for doing so.) (internal quotations omitted). Therefore, I would reverse the decision of the ALJ that Bickell did not suffer from a disability and is not entitled to benefits under Title II of the Social Security Act.
Accordingly, I dissent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470942/ | MEMORANDUM*
James Lockyer, as relator for the United States and the State of Hawaii and in his individual capacity, appeals the district court’s summary judgment on counts one and three of Lockyer’s qui tam complaint against his former employer and related parties for alleged violations of the federal False Claims Act (“FCA”) and related state laws. We affirm.
*281As to count one, Lockyer has failed to establish a genuine issue of material fact as to whether the defendants had the requisite scienter to support liability under the FCA, 31 U.S.C. § 3729(a)(l)-(3). Lockyer has presented evidence that raises genuine issues of fact as to whether the defendants violated the Medicare “incident to” rules. Nonetheless, “the FCA requires more than just a false statement — it requires that the defendant knew the claim was false.” United States ex rel. Oliver v. Parsons, 195 F.3d 457, 464 (9th Cir.1999). A defendant’s good faith interpretation of a regulation does not give rise to liability, “not because his or her interpretation was correct or ‘reasonable’ but because the good faith nature of his or her action forecloses the possibility that the scienter requirement is met.” Id. “For a qui tam action to survive summary judgment, the relator must produce sufficient evidence to support an inference of knowing fraud.” United States ex rel Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). Because the evidence produced by Lock-yer, viewed in the light most favorable to him, suggests only that any noncompliance with the Medicare regulations was due to a good faith interpretation of the regulations or at worst to negligence in the clinic’s compliance, the district court properly entered summary judgment for the defendants. See 31 U.S.C. § 3729(b) (requiring either “actual knowledge,” “deliberate ignorance,” or “reckless disregard”); Oliver, 195 F.3d at 464; United States ex rel Hochman v. Nachman, 145 F.3d 1069, 1074 (9th Cir.1998); Hagood v. Sonoma County Water Agency, 81 F.3d 1465, 1478-79 (9th Cir.1996).
As to count three, Lockyer has failed to raise a genuine issue of material fact as to whether he engaged in protected conduct and that the defendants knew of that fact; both are necessaiy to support liability under the FCA’s retaliation provision, 31 U.S.C. § 3730(h). Here, even if Lockyer were acting in the belief that the defendants had committed fraud against the government, there is no evidence that the defendants were aware that he had engaged in protected conduct. See United States ex rel Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir.1996) (“the employer must have known”). In fact, Lockyer and his attorneys had expressly represented to the defendants that their records request was related only to Lockyer’s compensation; they “never gave any indication [he] was investigating the [defendants] for defrauding the federal government.” Id. at 1270.
Although counts one and three of Lock-yer’s qui tam complaint also allege violations of the Hawaii law, no state law issues were raised in the briefs. Our analysis of the federal claims is therefore sufficient for the disposition of this appeal.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470944/ | MEMORANDUM*
The district court did not err by denying Deel’s motion to dismiss for lack of jurisdiction over the charge of discharging a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A). Even though that crime is not enumerated in the Major Crimes Act, the court’s jurisdiction was firmly established by United States v. *283Laughing, 855 F.2d 659, 660 (9th Cir. 1988).
The district court did not err by admitting the rifle cartridge into evidence. A search warrant was not required because the cartridge in the seat of the car was in plain view from outside the car, and there was probable cause to believe that it was evidence of a crime. See United States v. Seljan, 547 F.3d 993, 1005 (9th Cir.2008). Generally speaking, an automobile can be searched without a warrant if there is probable cause to believe it contains contraband or evidence of a crime. United States v. Hatley, 15 F.3d 856, 858-59 (9th Cir.1994).
The FBI agent’s testimony was admissible to impeach the government’s witness with his prior inconsistent statements. See United States v. Higa, 55 F.3d 448, 452 (9th Cir.1995). The district court properly instructed the jury on the limited purpose of the testimony, and we presume that the jury followed those instructions. See Fineberg v. United States, 393 F.2d 417, 419-20 (9th Cir.1968). The testimony also did not violate Deel’s Confrontation Clause rights because “the declarant[s] [were] present at trial to defend or explain it” and the testimony was used “for purposes other than establishing the truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Even if the extent of the testimony exceeded the district judge’s discretion under Federal Rule of Evidence 403, the error was harmless given the cartridge, the damage to the car and the testimony presented at trial.
The prosecutor did not comment on any purported silence by Deel. To the contrary, the prosecutor’s contention was that Deel did not remain silent and in fact made an ineriminating statement. As for the remainder of Deel’s allegations of misconduct, even if they were true and were misconduct, such minor instances would not have been prejudicial.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470946/ | MEMORANDUM*
Mark Gesse appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We AFFIRM.
A jury does not reach a valid verdict until deliberations have ended, the decision is announced in open court, and no juror registers his or her dissent. United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir. 1982). At no time did the jury announce a not guilty verdict on the second degree murder charge in open court.
Having been informed of the failure of jurors to deliberate in good faith, the court appropriately re-instructed the jury on their deliberation duties, clearly stating its reason for giving the further instructions. No evidence in the record suggests an effort by the court to exert influence upon the jury to reach a verdict. A trial judge is fully within his or her bounds to admonish jurors to consider the views of their fellow jurors, as long as the judge also clearly stated that the final decision each juror reaches must represent his or her own view. See Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
Inability to agree on a final verdict is a “prototypical example” of judicial declaration of mistrial. See Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Reviewing courts accord significant deference to trial judges in them decision to declare a mistrial. See Arizona v. Washington, 434 U.S. 497, 510, *28598 S.Ct. 824, 54 L.Ed.2d 717 (1978). The jury, which had been in deliberations for three days, informed the court that it was deadlocked, with a seven to five vote. Eleven of the twelve jurors felt it unlikely that further deliberation would resolve the differences to the degree where the panel would reach agreement. It was reasonable for the trial court to declare a mistrial and for the state courts to consider the trial court actions as neither contrary to, nor an unreasonable application of, clearly established law. 28 U.S.C. § 2254(d).
Because a mistrial was declared based on the jury’s inability to reach a verdict on the second degree murder charge, Gesse could properly be subjected to a second trial on that count. Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).
The evidence of second degree murder. Gesse is not entitled to habeas relief on grounds of insufficient evidence of malice as substantial evidence supported his conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The government showed:
(1) Gesse and Tauer fought each other in a small boat, fell off, and then both got back on to the boat.
(2) Gesse told his brother that he had knocked Tauer down, hitting him so hard that Gesse “thought he wasn’t going to be able to get up for a while.” When asked if he had “pretty much control” when the two men got back on to the boat, Gesse told the police “yes.”
(3) Tauer then ended up in the water.
(4) Gesse dumped Tauer’s gear overboard.
(5) Gesse kept silent until Tauer’s body was found, then told inconsistent stories about the events.
The jury had to consider four possible causes for Tauer’s death: accident; voluntary action by Tauer; manslaughter; or second degree murder. Noting Gesse’s consciousness of guilt, the jury rationally rejected the first and second alternatives.
As the jury did not believe Gesse’s testimony that Tauer left the boat voluntarily, the jury rationally concluded Gesse was responsible. Gesse himself testified that he had subdued Tauer, and thus a reasonable juror could have concluded that whatever provocation might have once existed had come to an end. To force a beaten man into ocean water at night in February at a point one mile from shore is an act dangerous to his life and shows a conscious disregard for his life. See People v. Dellinger, 49 Cal.3d 1212, 1218, 264 Cal.Rptr. 841, 783 P.2d 200 (Cal.1989) (“[Second] degree murder based on implied malice has been committed when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”) (citation omitted) (brackets in original). On the basis of his forcing Tauer overboard without provocation, a rational jury could convict Gesse of second degree murder. The California Court of Appeals did not err in affirming his conviction.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475543/ | ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470935/ | MEMORANDUM *
Netscape Communications Corporation and its parent company, America Online, (collectively, “AOL”) appeal the district court’s grant of summary judgment in favor of St. Paul Mercury Insurance Company. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
As an initial matter, the district court correctly determined that the claims against AOL were “personal injury offenses” and within the policy’s coverage. The policy covered claims alleging that AOL had made known to any person or organization material that violated a person’s right of privacy. Although the underlying claims against AOL were not traditional breach of privacy claims, given that coverage provisions are broadly construed, see AIU Ins. Co. v.Super. Ct., 51 Cal.3d 807, 274 Cal.Rptr. 820, 799 P.2d 1253, 1264 (1990), the underlying complaints sufficiently alleged that AOL had intercepted and internally disseminated private online communications. While some cases have stated that coverage is triggered by a disclosure to a third party, they do so in dicta while deciding whether the personal injury clause covers invasion of “seclusion privacy” claims. See, e.g., ACS Sys., Inc. v. St Paul Fire & Marine Ins. Co., 147 Cal.App.4th 137, 53 Cal.Rptr.3d 786, 795-96 (Cal.Ct.App.2007). They do not address the policy’s language covering disclosure to “any” person or organization, which we find dispositive.
Although the district court correctly determined that the claims were “personal injury offenses,” it erred in how it interpreted the policy exclusion for “providing internet access to 3rd parties.” Because “Internet access” is commonly equated with a working Internet connection, the district court interpreted this exclusion too broadly. The SmartDownload utility does not provide an Internet connection, and, in fact, is useless without one; AOL therefore did not provide Internet access in making the SmartDownload utility available. Since the other enumerated activities included in the “online activities” exclusion also do not apply to the Smart-Download program, we reverse the district court’s grant of summary judgment and remand for further proceedings.
REVERSED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470937/ | MEMORANDUM *
North Slope Borough and the Alaska Eskimo Whaling Commission (collectively, “North Slope”) challenge the Minerals Management Service’s (“MMS”) decision not to prepare a supplemental environmental impact statement for a proposed oil and gas lease sale on a tract of the outer-continental shelf in the Beaufort Sea. The parties are familiar with the facts; we need not recount them here. The district court found that North Slope failed to show that MMS acted arbitrarily or capriciously. We agree, and affirm.
MMS satisfied its duties under the National Environmental Protection Act (“NEPA”) by taking the requisite “hard look” at new information concerning the impact of rising oil prices on the activities related to Lease Sale 202, and issuing a finding of no new significance. See North Idaho Cmty. Action Network v. U.S. Dep’t of Trans., 545 F.3d 1147, 1154-55 (9th Cir.2008).
*275The agency did not act arbitrarily or capriciously in determining no supplemental environmental impact statement was required to address new information about the impact of seismic activity on Inupiat subsistence activities. The impact of this new information, and the effectiveness of the existing and new proposed mitigation measures, were adequately analyzed in the 2006 Final Programmatic Environmental Assessment, which was incorporated by reference into the 2006 Environmental Assessment for Lease Sale 202. See, e.g., Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 530 (9th Cir.1994). Contrary to North Slope’s arguments, a mitigation plan need not be legally enforceable to comply with NEPA. Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Trans., 222 F.3d 677, 681 n. 4 (9th Cir.2000).
Nor did MMS act arbitrarily or capriciously in determining that the risks posed to polar bears by the cumulative effects of global warming could be mitigated. Once again, the record demonstrates that the agency took the requisite hard look at this new information. Though the agency’s mitigation plan is not yet complete, MMS discussed the mitigation measures “in sufficient detail to ensure that environmental consequences have been fairly evaluated!)]” See Westlands Water Dist. v. U.S. Dept, of Interior, 376 F.3d 853, 872 (9th Cir.2004) (quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir.1972)).
We reject North Slope’s contention that MMS violated NEPA by failing to disclose dissenting opinions from its scientists on whether a supplemental statement was required to address new information about the impacts of Lease Sale 202 on Arctic wildlife. The duty to disclose and respond to “responsible opposing viewpoints” imposed by 40 C.F.R. § 1502.9(b) applies only to environmental impact statements, not environmental assessments. Furthermore, North Slope failed to identify any specific new information which shows that Lease Sale 202 may have a significant impact on Arctic wildlife.
Finally, MMS’s use of significance thresholds in interpreting and applying the significance factors set forth in 40 C.F.R. § 1508.27 does not violate NEPA.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470940/ | MEMORANDUM **
Edwin C. Bickell appeals from the district court’s affirmance of the final decision by the Commissioner of Social Security denying Bickell’s application for disability and supplemental security income benefits.1 We affirm.
The administrative law judge (ALJ) provided specific, clear and convincing reasons for discrediting Bickell’s testimony about the severity of his symptoms. Inconsistencies and a tendency to exaggerate provide a valid basis for discrediting the testimony of a claimant. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). First, the ALJ noted discrepancies in Bickell’s explanation of his March 2001 termination from his job in Idaho. Second, the ALJ noted the “dramatic shift” in the reporting of Bickell’s back-pain-related symptoms between being cleared for work by Dr. Glassman on September 26, 2001 and his first interview with Dr. Seals on October 1, 2001. And third, the ALJ noted numerous inconsistencies and exaggerations in Bickell’s interview with Dr. Moul-ton. These provide clear and convincing reasons for discrediting Bickell’s subjective complaints. In light of these valid reasons to discredit Bickell, his other assignments of error as to the ALJ’s credibility determination are harmless. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,1227 (9th Cir.2009).
The ALJ’s decision to reject Dr. Seals’s opinion was supported by substantial evidence. Bickell has not demonstrated that Seals’s opinion was based on evidence beyond Bickell’s complaints. Moreover, Dr. Seals’s letter pronouncing Bickell’s disability status was not supported by objective findings, and was contradicted by Dr. Glassman’s assessment. “When confronted with conflicting medical opinions, an ALJ need not accept a treating physician’s opinion that is conclusory and brief and unsupported by clinical findings.” Tonapetyan, 242 F.3d at 1149 (holding that treating and examining physicians’ diagnoses based on discredited claimant’s statements, without objective medical findings, were properly rejected). Accordingly, the ALJ’s reliance on Glass-man’s opinion as to Bickell’s functional *278capacity, rather than Seals’s disability opinion, was supported by substantial evidence.
Likewise, Bickell’s challenge to the ALJ’s rejection of Dr. Moulton’s assessment of Bickell’s functional deficits and ability to work fails. As we have discussed, Bickell made a number of inconsistent and exaggerated statements to Moulton that were included in Moulton’s report. Furthermore, the ALJ noted Moulton’s reliance on Bickell’s exhibited “pain behaviors” in Moulton’s determination that Bickell’s attention and concentration were deficient. Finally, the ALJ noted that Bickell performed at a not significantly impaired level in other functional spheres during Moulton’s testing. Under these circumstances, the ALJ’s determination to reject Moulton’s finding of functional deficits as inconsistent with Moulton’s objective evidence and based on Bickell’s discredited presentation, is supported by the record. See Tonape-tyan, 242 F.3d at 1149.
In determining Bickell’s residual functional capacity for Steps 4 and 5, the ALJ considered the evidence of impairment that Bickell points to in connection with his depression and personality disorder, and had valid reasons for rejecting the limitations diagnosed by Dr. Moulton. Accordingly, any alleged error in failing to deem the depression and personality disorder severe at Step 2 of the analysis was harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.2007) (holding that, where the ALJ considered evidence of limitations posed by claimant’s bursitis at Step 4 of the analysis, any error in failing to consider bursitis severe at Step 2 was harmless). Bickell’s reliance on Webb v. Barnhart, 433 F.3d 683 (9th Cir.2005), is misplaced, as there the ALJ erred in finding that the claimant lacked “a severe impairment or combination of impairments” at Step 2, and never conducted the Step 4 or 5 analysis. Here, as in Lewis, Bickell’s contention is that the ALJ erred in failing to find a disease severe at Step 2 where the ALJ subsequently considered the evidence of the impact of that disease at later steps.
Likewise, Bickell’s reliance on Dr. Seals’s diagnosis of depression and the DCMH counseling records is unavailing, as neither identified any functional limitations related to Bickell’s depression. In any event, the ALJ’s rejection of Seals’s diagnosis of severe depression as being based in Bickell’s discredited claims was supported by the record, as was the ALJ’s determination that the DCMH sessions focused on Bickell’s marital health.
Bickell’s challenge to the ALJ’s rejection of lay witness testimony also fails. The ALJ provided germane reasons for giving the lay witness testimony limited weight, noting that Bickell’s subjective complaints, which the lay witnesses necessarily relied on, were not credible, and that Bickell’s wife had indicated in her statements in the DCMH notes that she did not accept Bickell’s complaints and, furthermore, had failed to provide a letter in support of Biekell’s application. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.2005); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.2001) (upholding rejection of lay witness testimony where “the ALJ at least noted arguably germane reasons for dismissing the family members’ testimony, even if he did not clearly link his determination to those reasons”). The statements of the state vocational counselor introduced before the Appeals Council were likewise based in Bickell’s subjective claims, and do not undermine the ALJ’s conclusion.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We grant the unopposed motion of Amanda Taylor, Bickell’s daughter, to be substituted as appellant under Fed. R.App. P. 43(a)(1) in light of Bickell's death. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470943/ | MEMORANDUM*
James Lockyer, as relator for the United States and the State of Hawaii and in his individual capacity, appeals the district court’s summary judgment on counts one and three of Lockyer’s qui tam complaint against his former employer and related parties for alleged violations of the federal False Claims Act (“FCA”) and related state laws. We affirm.
*281As to count one, Lockyer has failed to establish a genuine issue of material fact as to whether the defendants had the requisite scienter to support liability under the FCA, 31 U.S.C. § 3729(a)(l)-(3). Lockyer has presented evidence that raises genuine issues of fact as to whether the defendants violated the Medicare “incident to” rules. Nonetheless, “the FCA requires more than just a false statement — it requires that the defendant knew the claim was false.” United States ex rel. Oliver v. Parsons, 195 F.3d 457, 464 (9th Cir.1999). A defendant’s good faith interpretation of a regulation does not give rise to liability, “not because his or her interpretation was correct or ‘reasonable’ but because the good faith nature of his or her action forecloses the possibility that the scienter requirement is met.” Id. “For a qui tam action to survive summary judgment, the relator must produce sufficient evidence to support an inference of knowing fraud.” United States ex rel Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). Because the evidence produced by Lock-yer, viewed in the light most favorable to him, suggests only that any noncompliance with the Medicare regulations was due to a good faith interpretation of the regulations or at worst to negligence in the clinic’s compliance, the district court properly entered summary judgment for the defendants. See 31 U.S.C. § 3729(b) (requiring either “actual knowledge,” “deliberate ignorance,” or “reckless disregard”); Oliver, 195 F.3d at 464; United States ex rel Hochman v. Nachman, 145 F.3d 1069, 1074 (9th Cir.1998); Hagood v. Sonoma County Water Agency, 81 F.3d 1465, 1478-79 (9th Cir.1996).
As to count three, Lockyer has failed to raise a genuine issue of material fact as to whether he engaged in protected conduct and that the defendants knew of that fact; both are necessaiy to support liability under the FCA’s retaliation provision, 31 U.S.C. § 3730(h). Here, even if Lockyer were acting in the belief that the defendants had committed fraud against the government, there is no evidence that the defendants were aware that he had engaged in protected conduct. See United States ex rel Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir.1996) (“the employer must have known”). In fact, Lockyer and his attorneys had expressly represented to the defendants that their records request was related only to Lockyer’s compensation; they “never gave any indication [he] was investigating the [defendants] for defrauding the federal government.” Id. at 1270.
Although counts one and three of Lock-yer’s qui tam complaint also allege violations of the Hawaii law, no state law issues were raised in the briefs. Our analysis of the federal claims is therefore sufficient for the disposition of this appeal.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470948/ | MEMORANDUM*
Mark Gesse appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We AFFIRM.
A jury does not reach a valid verdict until deliberations have ended, the decision is announced in open court, and no juror registers his or her dissent. United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir. 1982). At no time did the jury announce a not guilty verdict on the second degree murder charge in open court.
Having been informed of the failure of jurors to deliberate in good faith, the court appropriately re-instructed the jury on their deliberation duties, clearly stating its reason for giving the further instructions. No evidence in the record suggests an effort by the court to exert influence upon the jury to reach a verdict. A trial judge is fully within his or her bounds to admonish jurors to consider the views of their fellow jurors, as long as the judge also clearly stated that the final decision each juror reaches must represent his or her own view. See Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
Inability to agree on a final verdict is a “prototypical example” of judicial declaration of mistrial. See Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Reviewing courts accord significant deference to trial judges in them decision to declare a mistrial. See Arizona v. Washington, 434 U.S. 497, 510, *28598 S.Ct. 824, 54 L.Ed.2d 717 (1978). The jury, which had been in deliberations for three days, informed the court that it was deadlocked, with a seven to five vote. Eleven of the twelve jurors felt it unlikely that further deliberation would resolve the differences to the degree where the panel would reach agreement. It was reasonable for the trial court to declare a mistrial and for the state courts to consider the trial court actions as neither contrary to, nor an unreasonable application of, clearly established law. 28 U.S.C. § 2254(d).
Because a mistrial was declared based on the jury’s inability to reach a verdict on the second degree murder charge, Gesse could properly be subjected to a second trial on that count. Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984).
The evidence of second degree murder. Gesse is not entitled to habeas relief on grounds of insufficient evidence of malice as substantial evidence supported his conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The government showed:
(1) Gesse and Tauer fought each other in a small boat, fell off, and then both got back on to the boat.
(2) Gesse told his brother that he had knocked Tauer down, hitting him so hard that Gesse “thought he wasn’t going to be able to get up for a while.” When asked if he had “pretty much control” when the two men got back on to the boat, Gesse told the police “yes.”
(3) Tauer then ended up in the water.
(4) Gesse dumped Tauer’s gear overboard.
(5) Gesse kept silent until Tauer’s body was found, then told inconsistent stories about the events.
The jury had to consider four possible causes for Tauer’s death: accident; voluntary action by Tauer; manslaughter; or second degree murder. Noting Gesse’s consciousness of guilt, the jury rationally rejected the first and second alternatives.
As the jury did not believe Gesse’s testimony that Tauer left the boat voluntarily, the jury rationally concluded Gesse was responsible. Gesse himself testified that he had subdued Tauer, and thus a reasonable juror could have concluded that whatever provocation might have once existed had come to an end. To force a beaten man into ocean water at night in February at a point one mile from shore is an act dangerous to his life and shows a conscious disregard for his life. See People v. Dellinger, 49 Cal.3d 1212, 1218, 264 Cal.Rptr. 841, 783 P.2d 200 (Cal.1989) (“[Second] degree murder based on implied malice has been committed when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”) (citation omitted) (brackets in original). On the basis of his forcing Tauer overboard without provocation, a rational jury could convict Gesse of second degree murder. The California Court of Appeals did not err in affirming his conviction.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470949/ | SILVERMAN, Circuit Judge,
dissenting:
In 1991, Gesse and Tauer went out on a boat and got into a fight. Only Gesse returned. A few days later, Tauer’s body washed ashore. The autopsy established that the cause of death was drowning; it revealed no other injuries to Tauer (no signs of a struggle or foul play) and also that Tauer had a blood alcohol level of .16. *286Over seven years later, Gesse was charged with first-degree murder. After an acquittal on first-degree murder and a hung-jury on lesser degrees of homicide, Gesse was retried and ultimately convicted of second-degree murder.
The only living witness to what happened on the boat was Gesse. How, then, did the state prove not only that Gesse killed, Tauer but that he did so with “implied malice ” as opposed to, say, by accident or on a sudden quarrel or provocation? The state admits that it doesn’t really know how Tauer wound up in the water. The state speculates that he either fell in or was pushed, but the indisputable fact is that the prosecution’s theory is nothing more than a theory. Because Tauer had an injured shoulder, the state conjectures that Tauer would not have jumped into the water and tried to swim ashore. But in making its surmise, the state does not account for the fact that Tauer was drunk, had stopped wearing his sling, was seen carrying two six packs of beer earlier that day, and never claimed to anyone that he could not swim with his injured shoulder. The critical point is not whether Tauer really could swim with an injured shoulder, but whether he was sober enough to recognize his limitations, especially since his arm was apparently feeling better. In formulating its theory, the state simply ignores this. Nor does it account for the possibility that Tauer jumped into the water after the fight ended, never intending to swim ashore, but just to get away from Gesse for awhile.
It is true that over the seven years in which this case remained “unsolved,” Gesse made some inconsistent statements about what had happened. The general theme of his story remained constant— that he and Tauer had gotten into a fight and Tauer jumped into the water of his own accord. However, over the years, inconsistencies in some of the details emerged. The jury was well within its rights to draw adverse inferences from this. But these inferences are just as probative of manslaughter as they are of murder and do not shed any light on whether Gesse acted with malice or with a less culpable mental state. In Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir.2005), we granted habeas relief due to insufficient evidence to support the petitioner’s first-degree murder conviction, despite evidence that the petitioner had made false statements to police. We rejected as “bare conjecture” the state court’s conclusion that the untrue statements reflected a “consciousness of guilt” to prove the petitioner’s mental state. Id. Just as the false statements in Juan H. did not show that Juan acted with intent to aid and abet the killing, Gesse’s inconsistent statements do not prove that he acted with malice.
To repeat, Gesse’s inconsistent statements are just as probative of a guilty conscience for having killed Tauer by accident and then failing to report it, or upon a sudden quarrel, as it is of a malicious killing. His statements, although probative of a consciousness of wrongdoing, do not as a matter of logic narrow the inquiry into what degree of wrongdoing. It is not enough that Gesse might have acted with malice. Malice must be proven beyond a reasonable doubt, not entertained as a mere possibility.
Two men went out on a boat. One came back, the other drowned. Gesse may well be guilty of something, but the state simply did not prove second-degree murder. I would reverse the district court’s denial of habeas relief. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470951/ | MEMORANDUM*
The known informant who tipped off DEA agents to defendant’s drug dealing had a strong incentive to provide truthful information, explained the basis for his knowledge and provided detailed predictions about defendant’s future behavior. The agents were also able to corroborate many of the details provided by informant before acting. For example, they confirmed that informant had spoken with defendant on the phone, that defendant in fact went to the meeting place arranged in those phone calls and that the car defendant approached was the same color reported by informant. Defendant’s arrest and the search of his car were based on probable cause under the totality of the circumstances. United States v. Tarazon, 989 F.2d 1045, 1048-49 (9th Cir.1993); see, e.g., United States v. Rowland, 464 F.3d 899, 907-09 (9th Cir.2006). Both were lawful even though the agents lacked warrants. California v. Acevedo, 500 U.S. 565, 579-80, 111 S.Ct. 1982, 114 L.Ed.2d *288619 (1991); United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475544/ | ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470954/ | MEMORANDUM **
Juan Jose Sobrio Camacho, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying as untimely his motion to reconsider the underlying denial of his application for cancellation of removal.
Petitioner has waived any challenge to the BIA’s order denying his motion to reconsider by failing to raise any arguments related to the BIA’s dispositive determination that the motion to reconsider was untimely. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470956/ | MEMORANDUM **
Julian Barboza appeals from the 60-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Barboza contends that the district court improperly presumed that a sentence within the sentencing guidelines was reasonable. That contention is belied by the record. See United States v. Carty, 520 F.3d 984, 994 (9th Cir.2008) (en banc).
Barboza also contends that the sentence is substantively unreasonable because the district court did not adequately consider certain factors when it determined the sentence. The record shows that the district court reasonably concluded that the factors set forth in 18 U.S.C. § 3553(a) justified the sentence. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597-98, 169 L.Ed.2d 445 (2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470958/ | MEMORANDUM **
Maria Irma Pedraza De Sanchez, 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 denying her motion to terminate proceedings and finding her removable for participating in alien smuggling. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Urzua Covarrubias v. Gonzales, 487 F.3d 742, 747 (9th Cir.2007), and review de novo questions of law, Altamirano v. Gonzales, 427 F.3d 586, 591 (9th Cir.2005). We deny the petition for review.
According to the Form 1-213, Pedraza De Sanchez stated that she knew her granddaughter lacked documentation to legally enter the United States. Pedraza De Sanchez testified that she decided to attempt to bring her granddaughter into the United States and placed her in the vehicle that attempted to drive across the border. Moreover, substantial evidence supports the IJ’s determination that Pe-draza De Sanchez told the officer at primary inspection that she had forgotten her granddaughter’s documentation. See Urzua Covarrubias, 487 F.3d at 748-49 (substantial evidence supported determination that alien aided and abetted another alien’s illegal entry into the United States). Contrary to her contention, Pedraza De Sanchez therefore “provided some form of affirmative assistance to the illegally entering alien.” Altamirano, 427 F.3d at 592.
In light of our disposition, we need not reach Pedraza De Sanchez’s challenge to the BIA’s use of its streamlining procedure. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003) (“[Wjhere we can reach the merits of the decision by the IJ or the BIA, an additional review of *293the streamlining decision itself would be superfluous.”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470960/ | *304ORDER AND JUDGMENT*
PER CURIAM.
Defendant Juan Soto-Munoz pleaded guilty to possession with the intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Under the terms of his plea agreement, defendant waived his right “to file and/or perfect an appeal or collaterally attack any matter in connection with [his] prosecution, conviction and sentence.” Mot. to Enforce, Attach. A (Plea Agreement) at 4-5. The district court determined the applicable sentencing range to be 87 to 108 months and sentenced defendant to 87 months’ imprisonment, at the low end of the advisory guideline range and well below the statutory maximum sentence of forty years’ imprisonment. Despite waiving his appellate rights, defendant has now filed an appeal, prompting the government to seek to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam).
Under Hahn, we have adopted a three-prong analysis for determining whether an appellate waiver is enforceable, in which we examine whether: (1) the disputed appeal falls within the scope of the waiver of appellate rights; (2) the defendant knowingly and voluntarily waived his appellate rights; and (3) enforcing the waiver would result in a miscarriage of justice. 359 F.3d at 1325.
Defendant seeks to appeal his sentence as too long. In response to the government’s motion to enforce his appeal waiver, he contends that the district court presumed the sentence was reasonable because it was in the guideline range and failed to consider his individual characteristics as required by 18 U.S.C. § 3553(a)(2); failed to impose a sentence not greater than necessary, as required by § 3553(a); and failed to state in open court the reasons for imposing the particular sentence, as required by § 3553(c). He argues he never waived the right to appeal the district court’s failure properly to consider and apply 18 U.S.C. § 3553 and, therefore, his proposed appeal is outside the scope of his appeal waiver, was not knowingly and voluntarily entered and it would be a miscarriage of justice to enforce the waiver.
Defendant specifically waived the right to appeal “a sentence imposed which is within the guideline range determined appropriate by the court” unless the court departed upwards from the advisory guideline range determined to be applicable by the court. Plea Agreement at 5. The court did not depart upwards from the advisory Guidelines. In the plea agreement, the defendant requested that his sentence be within the Guideline range determined appropriate by the United States Probation Department, and for the district court to apply the Guidelines to calculate his sentence and to impose a sentence consistent with the Guidelines. Id. at 2. The defendant expressly stated that he understood and agreed that his sentence would be determined solely by the district court. Id. at 4. The district court conducted a straightforward application of the Guidelines, finding, after review, that the pre-sentence report prepared by the Probation Department was *305accurate. Defendant’s appeal is a direct challenge to that determination. Thus, defendant’s appeal falls squarely within the plain meaning of his appeal waiver.
Defendant contends he did not understand that he was giving up the right to appeal the district court’s compliance with the requirements of § 3553. This claim is not supported by record. He agreed in the plea agreement that he was “knowingly and voluntarily” waiving the right to appeal “any matter in connection with [his] prosecution, conviction and sentence.” Plea Agreement at 4-5 (emphasis added). In his plea colloquy, the defendant told the district court that he understood that, so long as the sentence he received was within the Guidelines range, he was agreeing “not to appeal from whatever happens” in the district court and that he would not “ever ask any court anywhere, at any time, for any reason to change whatever happens” in the district court. Mot. to Enforce, Attach. B, at 11. Furthermore, we have held that appellate waivers are enforceable even though a defendant did not know exactly how the waiver might apply. See Hahn, 359 F.3d at 1326 (rejecting the argument that “a defendant can never knowingly and voluntarily waive his appellate rights because he cannot possibly know in advance what errors a district court might make in the process of arriving at an appropriate sentence”); United States v. Montano, 472 F.3d 1202, 1205 (10th Cir.2007) (rejecting argument that an appeal waiver is unenforceable when a defendant does not know what the sentencing range will be when entering plea agreement).
Finally, defendant contends it would be a miscarriage of justice to enforce the appeal waiver because the waiver would be “otherwise unlawful” if the district court failed to consider and refer to the sentencing factors and policies of § 3553. Under the third Hahn prong, a miscarriage of justice occurs in situations where: (1) the district court relied on an impermissible factor such as race; (2) ineffective assistance of counsel resulted in connection with the negotiation of the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful. 359 F.3d at 1327. As to the fourth situation, concerning a waiver being “otherwise unlawful,” we do not look to “whether another aspect of the proceeding may have involved legal error” but look only “to whether the waiver [itself] is otherwise unlawful.” United States v. Shockey, 538 F.3d 1355, 1357 (10th Cir. 2008) (emphasis in original, quotation omitted). This list is exclusive and an appellate waiver will not result in a miscarriage of justice unless one of these four situations occurs. Id. Defendant’s miscarriage of justice argument is simply a claim of sentencing error, and this court has repeatedly held that alleged sentencing errors do not establish that enforcement of the appeal waiver would be unlawful under the miscarriage-of-justice inquiry. United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir.2007) (“Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is unlawful.... ”). Thus, it would not be a miscarriage of justice to enforce the appeal waiver.
Accordingly, we GRANT the government’s motion to enforce the appeal waiver in the plea agreement and DISMISS the appeal.
This panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470962/ | ORDER AND JUDGMENT*
WADE BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. RApp. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Appellant Cesar Chacon pled guilty to one count of conspiracy to possess with intent to distribute more than fifty kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and § 846, and one count of possession with intent to distribute less than fifty kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2. The district court sentenced Mr. Chacon to concurrent sentences of 151 months and sixty months, for a total term of 151 months imprisonment. Although Mr. Chacon appeals his convictions and sentences, his attorney has filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the *307reasons set forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. Id.
I. Background
Mr. Chacon pled guilty without the benefit of a plea agreement. During the Rule 11 colloquy conducted by the district court, Mr. Chacon indicated, in part, that he: (1) had not taken any medicine or other substance or suffered from or been treated for any physical or mental illnesses or conditions that would affect his ability to understand his plea; (2) understood the charges against him; (3) discussed with his counsel the offenses charged, the consequences of pleading guilty, his possible sentences, and the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) considerations; (4) was knowingly and voluntarily agreeing to plead guilty; (5) understood the consequences of pleading guilty, including the fact the maximum sentence was twenty years for the conspiracy drug count and five years for the other drug-related count against him; (6) understood the rights he was relinquishing in pleading guilty; and (7) confirmed his wish to plead guilty to the offenses charged. See Fed. R.Crim.P. 11(b). In accepting his guilty plea, the district court found Mr. Chacon’s guilty plea was knowing and voluntary; he was fully competent and capable of entering an informed plea; he was aware of the nature of the charges he faced and the consequences of his plea; and his plea was supported by an independent basis in fact containing the essential elements of the offenses to which he pled guilty.
After Mr. Chacon pled guilty, a probation officer prepared a presentence report calculating his sentences under the applicable 2007 Guidelines. The probation officer calculated the base offense level at 24, under U.S.S.G. § 2Dl.l(c)(8), because the instant offenses involved 80.8 net kilograms of marijuana, but adjusted his offense level to 32, under U.S.S.G. § 4B1.1, because he qualified as a career offender. In addition, based on Mr. Chacon’s acceptance of responsibility for the offenses charged, the probation officer included a three-level reduction, for a total offense level of 29. A total offense level of 29, together with a criminal history category of VI, for being a career offender, resulted in a Guidelines sentencing range of 151 to 188 months imprisonment for his count for conspiracy to possess with intent to distribute more than fifty kilograms of marijuana and a maximum term of imprisonment of sixty months for his count for possession with intent to distribute less than fifty kilograms of marijuana. In calculating Mr. Chacon’s sentences, the probation officer added criminal points for Mr. Chacon’s commission of the instant offenses while under a term of supervised release for his February 6, 2006 conviction for possession with intent to distribute more than fifty kilograms of marijuana and aiding and abetting.
Mr. Chacon did not file objections to the presentence report. At the sentencing hearing, Mr. Chacon’s counsel discussed his drug addiction and his family’s concerns over that addiction as reasons for a sentence at the low end of the Guidelines range and then explicitly requested concurrent sentences of 151 months and sixty months imprisonment, for a total term of imprisonment of 151 months. His counsel also requested a concurrent sentence of fifteen months for violating his supervised release on the 2006 conviction. In turn, the government did not object to concurrent sentences of 151 months and sixty months imprisonment on the instant offenses but requested that the sentence for his supervised release violation be assessed at ten months, to run consecutive to his other sentences. After hearing the parties’ arguments and a statement by Mr. *308Chacon, the district court stated that in imposing Mr. Chacon’s sentence it had considered the factual findings in the pre-sentence report, the Guidelines, and the sentencing factors under 18 U.S.C. § 3553(a), including its finding that Mr. Chacon is a career offender. The district court then sentenced him at the low end of the Guidelines range to concurrent sentences of 151 months and sixty months imprisonment on the instant offenses and fifteen months imprisonment on the supervised release offense, of which ten months would run consecutive and the other five months would run concurrent to the instant term of imprisonment.
Following Mr. Chacon’s timely notice of appeal of his convictions and sentences1 we appointed new counsel for Mr. Chacon after granting a motion to withdraw filed by his counsel of record. His newly-appointed counsel then filed an Anders appeal brief explaining that, after carefully examining the record and researching relevant case law, counsel has determined Mr. Chacon’s appeal presents no legally non-frivolous issues. See Anders, 386 U.S. at 744, 87 S.Ct. 1396. In support, counsel points out Mr. Chacon’s guilty plea was valid and in accordance with Federal Rule of Criminal Procedure 11, and he received a lawful and reasonable sentence which is procedurally and substantively sound. For these reasons, counsel moves to withdraw. Id.
Pursuant to Anders, this court gave Mr. Chacon an opportunity to respond to his counsel’s Anders brief. See id. Following Mr. Chacon’s failure to respond, the government filed a notice of its intention not to file an answer brief in this appeal.
II. Discussion
As required by Anders, we have conducted a full examination of the record before us. See id. The record establishes, among other things, that Mr. Cha-con’s guilty plea was voluntarily, knowingly, and intelligently entered; he was advised of and understood his possible sentences, other punishments he might face in conjunction with his guilty plea to the offenses charged, and the rights he was relinquishing; and that sufficient evidence supported his convictions. As to the length of his sentences, we review it for reasonableness, as guided by the factors in 18 U.S.C. § 3553(a), and have determined a sentence properly calculated under the Guidelines is entitled to a re-buttable presumption of reasonableness. See United States v. Kristi, 437 F.3d 1050, 1053-55 (10th Cir.2006) {per cu-riam ). Having made our reasonableness review, we find no nonfrivolous basis for challenging the sentences imposed. Mr. Chacon has not shown the district court erred in its calculation of his sentences, and a review of the record further establishes they were not improperly calculated, so they are entitled to a presumption of reasonableness which Mr. Chacon has not rebutted. Instead, as counsel asserts and we conclude, no nonfrivolous basis appears to exist for challenging the sentences imposed. See Anders, 386 U.S. at 744, 87 S.Ct. 1396.
III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Mr. Chacon’s appeal.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. Mr. Chacon did not appeal the supervised release violation sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470967/ | PER CURIAM:
Michael H. Saul, appointed counsel for El Luterio Orozco-Pineda 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). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Orozco’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470969/ | ON MOTION
PER CURIAM.
ORDER
Microsoft Corporation moves for a stay, pending appeal, of the district court’s injunction. The appellees oppose. Microsoft replies.
Without prejudicing the ultimate determination of this case by the merits panel, the court determines based upon the motion papers submitted that Microsoft has met its burden to obtain a stay of the injunction.
Accordingly,
IT IS ORDERED THAT:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470953/ | *289MEMORANDUM *
Erick Rolando Montes appeals the district court’s denial of his motion to suppress evidence and statements obtained diming a stop and frisk conducted by Los Angeles Police Department Officer Eric Hurd. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Considering the totality of the circumstances, the district court correctly concluded that the investigatory stop was proper because Officer Hurd had a reasonable suspicion that Montes was engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court also correctly determined that the frisk was justified to protect the officers’ personal safety. See id. at 24, 88 S.Ct. 1868. When Officer Hurd stopped and frisked Montes that evening, he knew that (1) minutes before the stop, officers had observed Montes, a known Toonerville gang member, driving a van in which a fellow gang member, who was wanted on a no-bail arrest warrant for murder and a parole violation, was a passenger; (2) Montes was walking along the driveway of a known gang hang-out; (3) Toonerville gang members had previously ambushed police officers in the same location; (4) the van Montes was driving had been parked at the end of a long driveway adjacent to the gang hang-out in a manner that could suggest it was being hidden; and (5) although Montes was accompanied by another, unidentified person at the time of the stop, the murder suspect with whom he had been driving minutes earlier was nowhere to be seen, and the officers could reasonably suspect he remained in the vicinity, creating a concern for officer safety. Under these circumstances, the stop and frisk was justified.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470955/ | MEMORANDUM **
Juan Jose Sobrio Camacho, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying as untimely his motion to reconsider the underlying denial of his application for cancellation of removal.
Petitioner has waived any challenge to the BIA’s order denying his motion to reconsider by failing to raise any arguments related to the BIA’s dispositive determination that the motion to reconsider was untimely. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470961/ | *304ORDER AND JUDGMENT*
PER CURIAM.
Defendant Juan Soto-Munoz pleaded guilty to possession with the intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Under the terms of his plea agreement, defendant waived his right “to file and/or perfect an appeal or collaterally attack any matter in connection with [his] prosecution, conviction and sentence.” Mot. to Enforce, Attach. A (Plea Agreement) at 4-5. The district court determined the applicable sentencing range to be 87 to 108 months and sentenced defendant to 87 months’ imprisonment, at the low end of the advisory guideline range and well below the statutory maximum sentence of forty years’ imprisonment. Despite waiving his appellate rights, defendant has now filed an appeal, prompting the government to seek to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam).
Under Hahn, we have adopted a three-prong analysis for determining whether an appellate waiver is enforceable, in which we examine whether: (1) the disputed appeal falls within the scope of the waiver of appellate rights; (2) the defendant knowingly and voluntarily waived his appellate rights; and (3) enforcing the waiver would result in a miscarriage of justice. 359 F.3d at 1325.
Defendant seeks to appeal his sentence as too long. In response to the government’s motion to enforce his appeal waiver, he contends that the district court presumed the sentence was reasonable because it was in the guideline range and failed to consider his individual characteristics as required by 18 U.S.C. § 3553(a)(2); failed to impose a sentence not greater than necessary, as required by § 3553(a); and failed to state in open court the reasons for imposing the particular sentence, as required by § 3553(c). He argues he never waived the right to appeal the district court’s failure properly to consider and apply 18 U.S.C. § 3553 and, therefore, his proposed appeal is outside the scope of his appeal waiver, was not knowingly and voluntarily entered and it would be a miscarriage of justice to enforce the waiver.
Defendant specifically waived the right to appeal “a sentence imposed which is within the guideline range determined appropriate by the court” unless the court departed upwards from the advisory guideline range determined to be applicable by the court. Plea Agreement at 5. The court did not depart upwards from the advisory Guidelines. In the plea agreement, the defendant requested that his sentence be within the Guideline range determined appropriate by the United States Probation Department, and for the district court to apply the Guidelines to calculate his sentence and to impose a sentence consistent with the Guidelines. Id. at 2. The defendant expressly stated that he understood and agreed that his sentence would be determined solely by the district court. Id. at 4. The district court conducted a straightforward application of the Guidelines, finding, after review, that the pre-sentence report prepared by the Probation Department was *305accurate. Defendant’s appeal is a direct challenge to that determination. Thus, defendant’s appeal falls squarely within the plain meaning of his appeal waiver.
Defendant contends he did not understand that he was giving up the right to appeal the district court’s compliance with the requirements of § 3553. This claim is not supported by record. He agreed in the plea agreement that he was “knowingly and voluntarily” waiving the right to appeal “any matter in connection with [his] prosecution, conviction and sentence.” Plea Agreement at 4-5 (emphasis added). In his plea colloquy, the defendant told the district court that he understood that, so long as the sentence he received was within the Guidelines range, he was agreeing “not to appeal from whatever happens” in the district court and that he would not “ever ask any court anywhere, at any time, for any reason to change whatever happens” in the district court. Mot. to Enforce, Attach. B, at 11. Furthermore, we have held that appellate waivers are enforceable even though a defendant did not know exactly how the waiver might apply. See Hahn, 359 F.3d at 1326 (rejecting the argument that “a defendant can never knowingly and voluntarily waive his appellate rights because he cannot possibly know in advance what errors a district court might make in the process of arriving at an appropriate sentence”); United States v. Montano, 472 F.3d 1202, 1205 (10th Cir.2007) (rejecting argument that an appeal waiver is unenforceable when a defendant does not know what the sentencing range will be when entering plea agreement).
Finally, defendant contends it would be a miscarriage of justice to enforce the appeal waiver because the waiver would be “otherwise unlawful” if the district court failed to consider and refer to the sentencing factors and policies of § 3553. Under the third Hahn prong, a miscarriage of justice occurs in situations where: (1) the district court relied on an impermissible factor such as race; (2) ineffective assistance of counsel resulted in connection with the negotiation of the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful. 359 F.3d at 1327. As to the fourth situation, concerning a waiver being “otherwise unlawful,” we do not look to “whether another aspect of the proceeding may have involved legal error” but look only “to whether the waiver [itself] is otherwise unlawful.” United States v. Shockey, 538 F.3d 1355, 1357 (10th Cir. 2008) (emphasis in original, quotation omitted). This list is exclusive and an appellate waiver will not result in a miscarriage of justice unless one of these four situations occurs. Id. Defendant’s miscarriage of justice argument is simply a claim of sentencing error, and this court has repeatedly held that alleged sentencing errors do not establish that enforcement of the appeal waiver would be unlawful under the miscarriage-of-justice inquiry. United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir.2007) (“Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is unlawful.... ”). Thus, it would not be a miscarriage of justice to enforce the appeal waiver.
Accordingly, we GRANT the government’s motion to enforce the appeal waiver in the plea agreement and DISMISS the appeal.
This panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470963/ | ORDER AND JUDGMENT*
WADE BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. RApp. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Appellant Cesar Chacon pled guilty to one count of conspiracy to possess with intent to distribute more than fifty kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and § 846, and one count of possession with intent to distribute less than fifty kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2. The district court sentenced Mr. Chacon to concurrent sentences of 151 months and sixty months, for a total term of 151 months imprisonment. Although Mr. Chacon appeals his convictions and sentences, his attorney has filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the *307reasons set forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. Id.
I. Background
Mr. Chacon pled guilty without the benefit of a plea agreement. During the Rule 11 colloquy conducted by the district court, Mr. Chacon indicated, in part, that he: (1) had not taken any medicine or other substance or suffered from or been treated for any physical or mental illnesses or conditions that would affect his ability to understand his plea; (2) understood the charges against him; (3) discussed with his counsel the offenses charged, the consequences of pleading guilty, his possible sentences, and the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) considerations; (4) was knowingly and voluntarily agreeing to plead guilty; (5) understood the consequences of pleading guilty, including the fact the maximum sentence was twenty years for the conspiracy drug count and five years for the other drug-related count against him; (6) understood the rights he was relinquishing in pleading guilty; and (7) confirmed his wish to plead guilty to the offenses charged. See Fed. R.Crim.P. 11(b). In accepting his guilty plea, the district court found Mr. Chacon’s guilty plea was knowing and voluntary; he was fully competent and capable of entering an informed plea; he was aware of the nature of the charges he faced and the consequences of his plea; and his plea was supported by an independent basis in fact containing the essential elements of the offenses to which he pled guilty.
After Mr. Chacon pled guilty, a probation officer prepared a presentence report calculating his sentences under the applicable 2007 Guidelines. The probation officer calculated the base offense level at 24, under U.S.S.G. § 2Dl.l(c)(8), because the instant offenses involved 80.8 net kilograms of marijuana, but adjusted his offense level to 32, under U.S.S.G. § 4B1.1, because he qualified as a career offender. In addition, based on Mr. Chacon’s acceptance of responsibility for the offenses charged, the probation officer included a three-level reduction, for a total offense level of 29. A total offense level of 29, together with a criminal history category of VI, for being a career offender, resulted in a Guidelines sentencing range of 151 to 188 months imprisonment for his count for conspiracy to possess with intent to distribute more than fifty kilograms of marijuana and a maximum term of imprisonment of sixty months for his count for possession with intent to distribute less than fifty kilograms of marijuana. In calculating Mr. Chacon’s sentences, the probation officer added criminal points for Mr. Chacon’s commission of the instant offenses while under a term of supervised release for his February 6, 2006 conviction for possession with intent to distribute more than fifty kilograms of marijuana and aiding and abetting.
Mr. Chacon did not file objections to the presentence report. At the sentencing hearing, Mr. Chacon’s counsel discussed his drug addiction and his family’s concerns over that addiction as reasons for a sentence at the low end of the Guidelines range and then explicitly requested concurrent sentences of 151 months and sixty months imprisonment, for a total term of imprisonment of 151 months. His counsel also requested a concurrent sentence of fifteen months for violating his supervised release on the 2006 conviction. In turn, the government did not object to concurrent sentences of 151 months and sixty months imprisonment on the instant offenses but requested that the sentence for his supervised release violation be assessed at ten months, to run consecutive to his other sentences. After hearing the parties’ arguments and a statement by Mr. *308Chacon, the district court stated that in imposing Mr. Chacon’s sentence it had considered the factual findings in the pre-sentence report, the Guidelines, and the sentencing factors under 18 U.S.C. § 3553(a), including its finding that Mr. Chacon is a career offender. The district court then sentenced him at the low end of the Guidelines range to concurrent sentences of 151 months and sixty months imprisonment on the instant offenses and fifteen months imprisonment on the supervised release offense, of which ten months would run consecutive and the other five months would run concurrent to the instant term of imprisonment.
Following Mr. Chacon’s timely notice of appeal of his convictions and sentences1 we appointed new counsel for Mr. Chacon after granting a motion to withdraw filed by his counsel of record. His newly-appointed counsel then filed an Anders appeal brief explaining that, after carefully examining the record and researching relevant case law, counsel has determined Mr. Chacon’s appeal presents no legally non-frivolous issues. See Anders, 386 U.S. at 744, 87 S.Ct. 1396. In support, counsel points out Mr. Chacon’s guilty plea was valid and in accordance with Federal Rule of Criminal Procedure 11, and he received a lawful and reasonable sentence which is procedurally and substantively sound. For these reasons, counsel moves to withdraw. Id.
Pursuant to Anders, this court gave Mr. Chacon an opportunity to respond to his counsel’s Anders brief. See id. Following Mr. Chacon’s failure to respond, the government filed a notice of its intention not to file an answer brief in this appeal.
II. Discussion
As required by Anders, we have conducted a full examination of the record before us. See id. The record establishes, among other things, that Mr. Cha-con’s guilty plea was voluntarily, knowingly, and intelligently entered; he was advised of and understood his possible sentences, other punishments he might face in conjunction with his guilty plea to the offenses charged, and the rights he was relinquishing; and that sufficient evidence supported his convictions. As to the length of his sentences, we review it for reasonableness, as guided by the factors in 18 U.S.C. § 3553(a), and have determined a sentence properly calculated under the Guidelines is entitled to a re-buttable presumption of reasonableness. See United States v. Kristi, 437 F.3d 1050, 1053-55 (10th Cir.2006) {per cu-riam ). Having made our reasonableness review, we find no nonfrivolous basis for challenging the sentences imposed. Mr. Chacon has not shown the district court erred in its calculation of his sentences, and a review of the record further establishes they were not improperly calculated, so they are entitled to a presumption of reasonableness which Mr. Chacon has not rebutted. Instead, as counsel asserts and we conclude, no nonfrivolous basis appears to exist for challenging the sentences imposed. See Anders, 386 U.S. at 744, 87 S.Ct. 1396.
III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Mr. Chacon’s appeal.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. Mr. Chacon did not appeal the supervised release violation sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470966/ | PER CURIAM:
Michael H. Saul, appointed counsel for El Luterio Orozco-Pineda 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). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Orozco’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470968/ | ON MOTION
PER CURIAM.
ORDER
Microsoft Corporation moves for a stay, pending appeal, of the district court’s injunction. The appellees oppose. Microsoft replies.
Without prejudicing the ultimate determination of this case by the merits panel, the court determines based upon the motion papers submitted that Microsoft has met its burden to obtain a stay of the injunction.
Accordingly,
IT IS ORDERED THAT:
The motion is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470988/ | SUMMARY ORDER
Petitioner appeals the Board of Immigration Appeals’s affirmance of the Immigration Judge’s denial of his motion for a continuance. We assume the parties’ familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.
The BIA’s opinion states that it refused to overturn the IJ’s decision not to grant Petitioner a continuance “[ajlthough a petition filed on behalf of the respondent was pending” because Petitioner “was not denied a full and fair hearing.” [A.R. 2] Most recently, the BIA articulated nonexclusive factors that should be considered in determining motions for continuance of ongoing removal proceedings. In re Hashmi, 24 I. & N. Dec. 785 (2009). Remand of this case to the BIA for further consideration in light of Hashmi is, therefore, appropriate. Cf. Wu v. Holder, 571 F.3d 467 (5th Cir.2009) (remanding a pre-Hashmi IJ continuance denial for consideration of the Hashmi factors).
We note, in passing, two other matters. First, the BIA appears to have described as “pending” the 1-130 petition of which Petitioner was the beneficiary, but the record and the IJ’s decision indicate that the 1-130 petition had been approved. Second, the IJ stated, as an alternative ground for his decision, that the above mentioned 1-130 petition had been automatically revoked. The BIA did not address this ground. We leave it to the BIA to decide what effect, if any, these facts have on the application of the Hashmi factors to this case. Alternatively, the BIA may prefer to remand this case to the IJ so that the IJ can apply Hashmi in the first instance.
In light of our conclusions above, we need not address Petitioner’s claim that the BIA’s decision denied him due process. The petition for review is GRANTED, and the case is REMANDED for further consideration. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470994/ | SUMMARY ORDER
Petitioner Chun Hua Chen, a native of Zhejiang Province and citizen of the People’s Republic of China, seeks review of a March 23, 2006 order of the BIA denying her motion to reopen. In re C-C-, 23 I. & N. Dec. 899 (BIA 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA denies a motion to reopen, this Court reviews the BIA’s decision for an abuse of discretion. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or coneluso-ry statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
The BIA did not abuse its discretion in denying Chen’s motion to reopen. In declining to reopen proceedings, the BIA properly considered the fact that Chen’s motion was not supported by specific evi*653dence that Chinese nationals returning to Zhejiang Province with children born abroad were subjected to forced sterilization. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005) (emphasizing that, to prevail on a motion to reopen, the movant must establish prima facie eligibility for asylum, i.e., “a realistic chance” that she will be able to establish eligibility).
The BIA appropriately found that an affidavit of John Shields Aird, submitted by Chen, was insufficient to support Chen’s claim. See In re C-C- 23 I. & N. Dec. at 901-02. The Aird affidavit referenced and quoted from 2003 administrative decisions from the Changle City Family Planning Administration and the Fujian Province Department of Family Planning Administration indicating that Chinese nationals who return to Fujian Province from abroad with foreign-born children would be subject to the family planning regulations. Id. However, the BIA reasonably found that these documents were not probative when neither they nor the Aird affidavit contained specific information as to the application of the family planning policy to Chinese citizens returning to Zhejiang Province with children born abroad. See id.; see also Poradisova, 420 F.3d at 78. But see Shou Yung Guo v. Gonzales, 463 F.3d 109, 114-15 (2d Cir. 2006) (remanding for the BIA to consider documents purporting to show that foreign-born children would be counted in Fujian Province in determining violations of China’s one-child policy). Furthermore, while the BIA did not address each of the exhibits accompanying the Aird affidavit, it was not required to do so, and there is no indication that it did not consider them in rendering its decision. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336, n. 17 (2d Cir.2006) (emphasizing that, where the agency has given reasoned consideration to the petition and made adequate findings, it is not required to address specifically each claim the petitioner made or each piece of evidence the petitioner presented).
Moreover, in rendering its decision, the BIA properly relied on the State Department Profile of Asylum Claims and Country Conditions for China (“Profile”), for 2004 and 2005, as well as the Country Reports on Human Rights Practices for China (“Country Reports”), for 2004 and 2005. While indicating that reports of physical coercion to meet birth targets continued, the 2005 Country Reports also indicated that central government policy “formally prohibits the use of physical coercion to compel persons to submit to abortion or sterilization.” See In re C-C-23 I. & N. Dec. at 903. Additionally, the 2004 Profile indicated that American diplomats were unaware of any cases in which returnees from the United States were forced to undergo sterilization upon their return to China. Id. The BIA also accurately observed that Zhejiang Province was not mentioned among those provinces which imposed “stringent measures to deal without-of-plan pregnancies.” Id.2 Accordingly, the BIA cannot be said to have abused its discretion in denying Chen’s motion to reopen in light of this record.
We pause to note that the instant case is distinguishable from Shou Yung Guo, 463 F.3d 109. In that case, the Court remanded to the BIA because it had failed to examine sufficiently several administrative decisions from the Fujian Province family planning authorities which indicated that parents of children born abroad would be subject to the family planning policy. 463 *654F.3d at 115; see also Jin Xiu Chen v. U.S. Dep’t of Justice, 468 F.3d 109, 111 (2d Cir.2006) (taking “cognizance” of the Shou Yung Guo documents in the record); Tian Ming Lin v. U.S. Dep’t of Justice, 473 F.3d 48 (2d Cir.2007) (remanding based on the existence of the Shou Yung Guo documents). However, the Shou Yung Guo documents are not relevant to Chen’s case because, although she presented the same documents as attachments to the Aird affidavit, they pertained to family planning practices in Fujian Province, whereas Chen is from Zhejiang Province. Furthermore, in contrast to Shou Yung Guo, the BIA specifically considered these documents and reasonably found that they were not probative because they did not address the application of the family planning policy as it pertains to people returning to Zhejiang Province with children born abroad. In re C-C-, 23 I. & N. Dec. at 901-02.
For the foregoing reasons, the petition for review is DENIED. The pending motion to supplement the record is GRANTED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
. In addition, the BIA appropriately noted that the Third Circuit's decision in Jian Lian Guo v. Ashcroft, 386 F.3d 556 (3d Cir.2004), which Chen urged it to adopt, is not binding in this Circuit. See In re C-C-, 23 I. & N. Dec. at 900. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470996/ | SUMMARY ORDER
Fei Li, a native and citizen of the People’s Republic of China, seeks review of an April 4, 2008 order of the BIA, affirming the April 19, 2006 decision of Immigration Judge (“IJ”) Elizabeth A. Lamb, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Fei Li, No. A98 593 688 (B.I.A. Apr. 4, 2008), aff'g No. A98 593 688 (Immig. Ct. N.Y. City Apr. 19, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
“Where, as here, the BIA adopts the IJ’s reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B). When evaluating credibility determinations for substantial evidence, we afford “particular deference” to the IJ, Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008) (citation omitted), including the IJ’s “assessment of demeanor,” Niang v. Mukasey, 511 F.3d 138, 145 (2d Cir.2007). “We will vacate and remand for new findings, however, if the agency’s reasoning or its factfinding process was sufficiently flawed.” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir.2009). “[W]e need not remand if doing so would be futile, that is, if we can predict with confidence that the agency would reach the same result even absent [ ] errors.” Id. at 222.
Substantial evidence supports the IJ’s adverse credibility determination. The IJ reasonably relied on inconsistencies and omissions in the record. For example, during cross-examination, Li stated that his mother told him that cadres were no longer looking for him even after he fled to the United States. However, his uncle’s affidavit indicated that cadres were still looking for him since he left China. Although Li argues that the IJ erred in relying on this discrepancy because she did not give him an opportunity to explain, the IJ was not required to allow Li an opportunity to proffer an explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005); see also Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir. 2006). The IJ further relied on Li’s failure to testify consistently with his asylum application. While Li claimed in his application that cadres went to his mother’s home to arrest him the day after his uncle was arrested, and they told her that he needed to report to them immediately, he omitted this information from his testimony. The IJ properly relied on this discrepancy in making her adverse credibility determination. See Liang Chen, 454 F.3d at 106-07. The discrepancies the IJ identified constitute substantial evidence supporting her adverse credibility determination. 8 U.S.C. § 1158(b)(l)(B)(iii); see Xiu Xia *656Lin, 534 F.3d at 165-66; see Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006).
The BIA, however, relied on an additional reason when it affirmed the IJ’s adverse credibility finding. The BIA stated that the IJ’s “observation that [Li] appeared to have ‘memorized part of the story’ is tantamount to an assessment of [Li’s] demeanor.” The IJ did not make any observation about Li’s demeanor; rather, without qualifying or explaining what she meant, the IJ noted that Li was “unable to testify” about certain facts. Compare, e.g., Majidi, 430 F.3d at 79(the IJ expressly found that the petitioner’s demeanor was “extremely unresponsive and evasive”). The record demonstrates, and the IJ found, that Li “specifically testified” to some facts, but not to others. Thus, it was the lack of testimony about certain facts, coupled with the inconsistencies discussed above, and not Li’s demean- or, that formed the basis for the IJ’s adverse credibility finding.
“Demeanor”2 is conduct, not speech; it is a manner of speaking, not the content of speech. Where, as here, the IJ only analyzed the petitioner’s testimony, i.e. statements made or omitted, their specificity and consistency, and did not report observations of the petitioner’s conduct or manner of speaking, it cannot be said that the IJ made an assessment of “demeanor.” Although the BIA erred when it concluded that the IJ’s observation that Li appeared to have “memorized part of the story” was tantamount to an assessment of his demeanor, the error is not material because we find that the ground upon which the IJ relied most substantially in finding adverse credibility, adopted by the BIA, is free of error. We conclude that the same decision is inevitable on remand; thus any remand would be futile. See Yuanliang Liu v. Dep’t of Justice, 455 F.3d 106, 111 n. 1 (2d Cir.2006).
Because Li based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. "demeanor. Outward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readi*657ness to answer questions.” Black Law’s Dictionary 463 (8th Ed.2004). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470998/ | SUMMARY ORDER
Zafar Ullah and Mohammad Titu Has-san, natives and citizens of Bangladesh, seek review of a May 8, 2008 order of the BIA denying their motion to reopen their removal proceedings. In re Zafar Ullah and Mohammad Titu Hassan, Nos. A97 746 280, A97 746 290 (B.I.A. May 8, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien *658establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not abuse its discretion in denying Ullah and Titu Hassan’s motion to reopen, which was indisputably untimely. See 8 C.F.R. § 1003.2(c)(2). Ullah and Titu Hassan argue, however, that they met an exception to the time limit by establishing changed country conditions, to wit, that since the prior proceedings, authorities have filed new charges against them, and members of their political party have been arrested.
The BIA did not abuse its discretion in finding that Ullah and Titu Hassan failed to establish prima facie eligibility for the relief they sought based on their political opinion where the agency had previously found that same claim not credible. See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.2006). In their motion, Ullah and Titu Hassan asserted that the evidence they submitted corroborated their claim that they are being persecuted for their political affiliation. However, the IJ had previously found Ullah’s testimony not credible regarding his arrests, detentions, and beatings on account of his affiliation with the Awami League. The BIA affirmed that credibility finding, and we denied the resulting petition for review. See U.S.C.A. Dkt. 06-5664-ag at 7/26/07 Entry. As we have stated, the BIA may deny a motion to reopen which fails to overcome a prior adverse credibility determination. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per curiam). Thus, we find no abuse of discretion in the BIA’s denial of Ullah and Titu Hassan’s motion to reopen to the extent that it was based on their political opinion.
Ullah and Titu Hassan also argue that the BIA erred in discrediting the evidence they submitted with their motion. However, we find no error in that decision. We have found that the BIA may reasonably decline to accord probative weight to unauthenticated documents submitted with a motion to reopen where the IJ made an adverse credibility determination after the movant’s asylum hearing. Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471000/ | SUMMARY ORDER
Petitioner Lizhen Lin, a native and citizen of the People’s Republic of China, seeks review of a July 24, 2008 order of the BIA denying his motion to reopen. In re Lizhen Lin, No. A71 036 737 (B.I.A. July 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA denies a motion to reopen, this Court reviews the BIA’s decision for an abuse of discretion. Kaur v. BIA, 413 F.3d 232,. 233 (2d Cir.2005). In reviewing the BIA’s denial of motions to reopen, this Court has remained mindful of the Supreme Court’s admonition that motions to reopen are “disfavored.” See Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir.2006).
Here, the BIA did not abuse its discretion in denying Lin’s motion to reopen as untimely. Under the relevant regulations, an alien may file one motion to reopen within 90 days of the date on which a final administrative decision was rendered in the proceeding sought to be reopened. See 8 C.F.R. § 1003.2(c)(2). It is undisputed that Lin’s motion to reopen, filed almost five years after his final order of removal, was untimely. However, the time limit does not apply to a motion to reopen that is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Such changes are regularly referred to as “changed country conditions” and distinguished from “changed personal circumstances.” See Jian Huan Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003).
*660The BIA properly found that Lin failed to establish changed country conditions. While Lin argues that the BIA abused its discretion in finding that his evidence did not demonstrate changed country conditions, we have rejected the notion that the agency “must expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (citation and internal quotation marks omitted); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (noting that the Court “presume[s] that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”). Here, the BIA referred to the “numerous documents” that Lin submitted in support of his motion but found them insufficient to demonstrate that country conditions had changed with respect to members of the Chinese Democracy Party since Lin’s merits hearing in August 2000.
Lin argues that country conditions in China have worsened since his merits hearing due to the government’s “crack down” on political dissidents who publish pro-democracy articles on the internet. However, as the government properly argues, Lin’s argument lacks merit because he fails to demonstrate that China changed its policy toward political dissidents.
In addition, Lin contends that the BIA erroneously denied his motion to reopen without separately addressing his request for CAT relief. Contrary to Lin’s argument, he was required to demonstrate changed country conditions in order to have his proceedings reopened regardless of the relief he sought. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
Accordingly, the BIA’s denial of Lin’s motion to reopen was not an abuse of discretion. See Kaur, 413 F.3d at 233.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
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