url
stringlengths 59
59
| text
stringlengths 0
1.13M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8471160/ | PER CURIAM.
John Ford, a federal prisoner represented by counsel, appeals a district court judgment sentencing him to sixty-six months of imprisonment and three years of supervised release for violating 18 U.S.C. § 666. Finding no error, we affirm.
On April 27, 2007, a jury convicted Ford of “Bribery Involving Federal Programs” in violation of § 666. Ford’s advisory sentencing guideline range was seventy-eight to ninety-seven months. Ford objected to his presentence report, arguing that he should not receive a two-level enhancement for multiple bribes under USSG § 2Cl.l(b)(l). Ford also objected to a two level enhancement for obstruction of justice pursuant to USSG § 3C1.1. The district court overruled Ford’s objections.
In his timely appeal, Ford continues to challenge the two enhancements. The case has been held in abeyance until we issued our en banc decision of United States v. White, 551 F.3d 381 (6th Cir.2008), petition for cert. filed (U.S. Mar. 24, 2009) (No. 08-9523).
We review sentences imposed by the district court for reasonableness. United States v. Smith, 474 F.3d 888, 892 (6th Cir.2007) (citing United States v. Collington, 461 F.3d 805, 807 (6th Cir.2006)). Reasonableness review has both a procedural and a substantive component. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Thomas, 498 F.3d 336, 339 (6th Cir.2007). Thus, when reviewing a district court’s sentencing determination, we “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 128 S.Ct. at 597.
“Assuming that the district court’s sentencing decision is proeedurally sound, [we] should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. District courts are charged with imposing “a sentence sufficient, but not greater than necessary” to fulfill the purposes of sentencing in § 3553(a)(2). United States v. Foreman, 436 F.3d 638, 644 (6th Cir.2006) (internal quotation marks omitted). “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 128 S.Ct. at 597. In this circuit, we apply a rebuttable appellate presumption of reasonableness to a sentence that falls within a properly calculated Guidelines range. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.), cert. denied, — U.S. —, 129 S.Ct. 68, 172 L.Ed.2d 26 (2008) (acknowledging that Rita v. United States, 551 U.S. 338, 345-47, 354-55, 127 S.Ct. 2456, 2462, 2467, 168 L.Ed.2d 203 (2007), gives courts of appeals the option of applying a presumption to within-Guidelines sentences). That does not mean, however, that a sentence outside of the Guidelines range — either higher or lower — is presumptively unreasonable. Rita, 127 S.Ct. at 2467 (“The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness.”). Rather, such a sentence carries no legal presumption. Id.
Ford was indicted by a federal grand jury on May 25, 2005. Count one of the indictment charged Ford with attempting to obstruct, delay, and affect commerce by means of extortion in violation of 18 U.S.C. § 1951; count two of the indictment charged Ford with interference with com*169merce by threat or violence in violation of 18 U.S.C. § 666. Counts three, four, and five of the indictment charged Ford with intimidation or force against witnesses in violation of 18 U.S.C. § 1512(b)(3).
The evidence at trial showed that the FBI created a sting operation called “Operation Tennessee Waltz” to investigate corruption in the Tennessee legislature. Ford, at the time a member of the Tennessee Senate, accepted one $10,000 and numerous $5,000 bribes to support legislation in favor of a fictitious company set up by the FBI called E-Cycle Management. The evidence also showed that Ford made threats against an undercover FBI agent and a private party recruited by the FBI to be párt of the operation.
A jury found Ford guilty of the bribery charge. A mistrial was declared on the obstruction charge of the indictment, and was subsequently dismissed upon motion of the United States. The jury found Ford not guilty on the remaining counts of the indictment.
Prior to sentencing, Ford filed objections to the two-level enhancement contained in Ford’s presentence report. The enhancement, made pursuant to § 2Cl.l(b)(l), was added because Ford received multiple bribes.
After hearing arguments on the matter, the district court determined that the payments made to Ford on behalf of E-Cycle constituted multiple bribes to Ford. The court found that the payments made to Ford were not installments towards the payment of a larger, previously agreed upon amount. The court noted that the payments were made on a monthly basis, and sometimes more frequently. Further, the court found that the payments were generally made in connection with a specific action by Ford, such as redrafting or amending a bill, or withdrawing the bill for consideration by the state legislature. The court disagreed with Ford’s argument that the payments constituted a single bribe because they were all made for a single benefit, that benefit being the introduction of specific legislation.
The district court ruled that the agreement in which Ford would receive benefits from the public stock offering by E-Cycle, if the legislation passed, would qualify as a payment separate from the monthly payments. This payment also established a basis for the enhancement under § 2C1.1(b)(1).
The court also ruled on Ford’s objections regarding the two-level enhancement for obstruction of justice contained in the presentence report pursuant to § 3C1.1. The presentence report relied on the threats contained in the recorded conversations between Ford, the private party, and the undercover agent, as well as the testimony regarding the threats.
The United States played portions of the audio recordings introduced during the trial. The first recording concerned the threats made to the private party during a meeting in Ford’s office on February 3, 2005. The United States also played a recording that concerned the threat to the undercover agent made by Ford.
Ford argued that this conduct was the basis for the charges that Ford had been acquitted of during trial, counts three through five of the indictment. Therefore, these actions should not be used to enhance Ford’s guidelines calculations.
The district court noted that the standard that was to be applied at sentencing was the preponderance-of-the-evidenee standard. The court stated that the provisions for an enhancement under § 3C1.1 indicated that obstructive behavior can be varied. The court described the differences between the enhancement provision of § 3C1.1 and the obstruction statute under which Ford was acquitted. The court ruled that the evidence presented at trial *170established the threats by a preponderance of the evidence and, therefore, the enhancement was applicable.
Section 2Cl.l(b)(l) imposes a two-level sentence enhancement for receipt of “more than one bribe or extortion.” The Sentencing Commission’s commentary provides that “[r]elated payments that, in essence, constitute a single incident of bribery or extortion (e.g., a number of installment payments for a single action) are to be treated as a single bribe or extortion, even if charged in separate counts.” USSG § 2C1.1 cmt. n. 2.
In making its determination, the district court relied first on United States v. Canestraro, 282 F.3d 427 (6th Cir.2002), a Sixth Circuit case involving multiple gratuities under an analogous Sentencing Guidelines provision. USSG § 2C1.2(b)(l). There the court held that the multiple payments did constitute multiple gratuities that justified the imposition of the enhancement. Id. at 481-32.
Second, the district court relied on the Second Circuit’s interpretation of § 2C1.1 in United States v. Arshad, 239 F.3d 276 (2d Cir.2001). The Arshad court identified several factors commonly applied to determine if a payment, or payments, constitute multiple bribes, including: 1) whether “the payments were made to influence a ‘single action’,” id. at 280 (citing United States v. Middlemiss, 217 F.3d 112, 124 (2d Cir.2000); United States v. Martinez, 76 F.3d 1145, 1153-54 (10th Cir.1996)); 2) “whether the pattern and amount of payments bear the hallmarks of installment payments, such as a regular schedule of payments over a finite period of time toward a fixed final sum, rather than a series of intermittent and varied bribes,” Arshad, 239 F.3d at 281-82 (citing Middlemiss, 217 F.3d at 124; Martinez, 76 F.3d at 1153; United States v. Morales, 11 F.3d 915, 917 (9th Cir.1993)); and 3) “whether the method for making each payment remains the same.” Arshad, 239 F.3d at 282 (citing Morales, 11 F.3d at 917).
The district court’s enhancement of Ford’s sentence using § 2Cl.l(b)(l) was not erroneous. As the district court noted, the evidence presented at trial showed that the undercover agent and Ford had not established a fixed sum that Ford would receive for the legislation. The payments made to Ford were made in a manner to clearly influence more than one event. The evidence establishes that each payment was accomplished by another action by Ford in his authority as a state senator. The payments were made to Ford for 1) drafting the legislation; 2) placing the legislation before the committee; 3) amending the legislation; 4) withdrawing the legislation; and 5) delaying the legislation, all for the purpose of benefiting a fictitious, corrupt corporation. In addition to the periodic payments, which establish that there was no regular schedule of payments and that there was no agreed final fixed amount, Ford was given access to the corporation’s initial public stock options once the legislation was passed. This second method of receiving payment, under Ar-shad, further establishes that Ford received multiple bribes. Arshad, 239 F.3d at 282; see also Canestraro, 282 F.3d at 432 (holding that a “success fee” also constitutes a separate gratuity). As the district court’s application of § 201.1(b)(1) is proeedurally and substantively reasonable, Gall, 128 S.Ct. at 597, the argument does not warrant the reversal of the district court’s sentence.
Ford next contends that the district court erred by granting a two-level increase under § 3C1.1 for threatening and intimidating the private party and the undercover FBI agent because the jury had found Ford not guilty of the obstruction charges. The district court noted at sentencing that even though Ford was not convicted by the jury of the in*171timidation charges, the preponderance of the evidence standard applies in sentencing proceedings. Based upon the evidence at trial, the court concluded that Ford had engaged in obstruction and that the enhancement of § 3C1.1 applied. Ford conceded in his brief that our decision in White would resolve this issue. In White, we held that so long as the defendant receives a sentence that is at or below the statutory limit established by the jury’s verdict, the district court does not violate a defendant’s right to a jury trial by examining other facts, including acquitted conduct, when determining a sentence. White, 551 F.3d at 385. The statutory maximum that Ford faced was ten years of imprisonment, three years of supervised release, a $250,000 fíne, and a $100 special assessment. Because Ford’s sentence was well below the statutory maximum, under White, the district court’s implementation of § 3C1.1 does not render Ford’s sentence procedurally or substantively unreasonable.
Accordingly, we affirm. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471162/ | ORDER
Guadalupe Macias-Martinez pleaded guilty to illegally reentering the United States after being deported following his prison term for drug trafficking. See 8 U.S.C. § 1326(b)(2). The district court applied the 16-level increase for aggravated felonies see U.S.S.G. § 2L1.2, in calculating a guidelines imprisonment range of 57 to 71 months, but imposed a below-guidelines term, 52 months. Macias-Martinez filed a notice of appeal, but his counsel is unable to discern any nonfrivolous claims to pursue and seeks to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We address only the potential issues identified in counsel’s supporting brief and Macias-Martinez’s response under Cir. R. 51(b). See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Macias-Martinez reentered the United States a year after he was deported, and within six months he was again convicted in Wisconsin court of trafficking cocaine. He was sentenced to 90 days in prison and, on top of that, reimprisoned for approximately 18 months for violating the terms of the supervised release imposed as part of his original trafficking sentence. During that time, he was taken into federal custody, where he pleaded guilty to the immigration violation. The district court imposed a new sentence running concurrently with the reimprisonment term.
*266Macias-Martinez does not wish to challenge his guilty plea, so counsel appropriately refrains from discussing possible arguments about the voluntariness of the plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel first concludes, and we agree, that any challenge to the reasonableness of the sentence would be frivolous. The district court considered at length the sentencing factors set forth in 18 U.S.C. § 3553(a)(2) and imposed a sentence below the guidelines range. We accord a within-guidelines sentence a presumption of reasonableness, see Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-64, 168 L.Ed.2d 203 (2007); United States v. Shannon, 518 F.3d 494, 496 (7th Cir.2008); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005), and the presumption is strengthened when the defendant is complaining about a sentence below the guidelines range applicable to his offense.
Counsel then considers whether Macias-Martinez could argue that the district court should have imposed a lesser prison term based on the allegedly substandard conditions of his presentencing confinement in Wisconsin prisons. At sentencing Macias-Martinez asserted that for the past nine months he spent 19 hours a day locked in his cell with limited access to a television, and that, as a result of his transfers between state and federal custody, he was unable to access all of the funds in his inmate account. And because he could not use those funds, he continued, he went without needed dental care and sundries that would have eased his time in jail. But, as counsel notes, conditions of presentencing confinement are not among the factors that judges must consider in crafting a sentence. See 18 U.S.C. 3553(a)(2); United States v. Turner, 569 F.3d 637, 642 (7th Cir.2009). Even though a lower sentence might be justified by conditions of presentencing confinement that are extraordinarily harsh, United States v. Campos, 541 F.3d 735, 751 (7th Cir.2008), there are two reasons why it would be frivolous for Macias-Martinez to claim that the district court had to address the circumstances of his detention. First, he presented no documentation showing that conditions were as unpleasant as he alleged. See id. Second, putting aside the evidentiary issue, the conditions Macias-Martinez described were not unusually harsh and thus did not merit the judge’s attention. See United States v. Ramirez-Gutierrez, 503 F.3d 643, 646 (7th Cir.2007) (poor ventilation, inadequate opportunities to exercise, and lack of dental care not so harsh as to warrant special consideration).
The final potential issue identified by counsel is the district court’s failure to consider the absence of a “fast track” program for illegal reentry cases in the Eastern District of Wisconsin. We have consistently held that a sentencing judge in a district without a “fast track” program may not take into account the fact that similar defendants in districts operating such programs could receive lower sentences. See United States v. Pacheco-Diaz, 506 F.3d 545, 552 (7th Cir.2007); United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir.2006). Those cases all, however, predate Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and other circuits are split on whether that decision requires them to reevaluate a district court’s discretion to consider fast-track disparities. Compare United States v. Rodríguez, 527 F.3d 221, 229 (1st Cir.2008) (overruling previous cases that held a district court lacked discretion), with United States v. Gomez-Herrera, 523 F.3d 554, 562 (5th Cir.2008), United States v. Vega-Castillo, *267540 F.3d 1235, 1238-39 (11th Cir.2008), and United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir.2009). Even so, because Macias-Martinez never asked the court to exercise discretion, it would be frivolous to argue on appeal that it abused its discretion. See United States v. Filipiak, 466 F.3d 582, 584 (7th Cir.2006).
Macias-Martinez contends that the district court should have shortened his sentence based on the amount of time he had already served on his reimprisonment. He points to U.S.S.G. § 5G1.3(b)(l), which requires a district court to reduce a sentence to reflect time served on an undischarged prison term that was imposed for an offense already taken into account by the guidelines calculation. See United States v. Bangsengthong, 550 F.3d 681, 682 (7th Cir.2008); United States v. Knight, 562 F.3d 1314, 1329 (11th Cir.2009). By Macias-Martinez’s reckoning, proper application of § 5G1.3(b) would have shaved eight months off his prison term. Yet application note 2(B) specifically explains that § 5G1.3(b) does not apply in a case like this, where the current offense is illegal entry and the prior offense was an aggravated felony. See United States v. Morales-Castillo, 314 F.3d 561, 563-64 (11th Cir.2002).
Lastly, Macias-Martinez proposes arguing that his counsel performed deficiently by failing to ask the district court to consider fast-track disparities and § 5G1.3(b). But a claim of ineffective assistance of counsel is better left to collateral appeal, where a record devoted to counsel’s performance can be developed, and it would be frivolous to argue that this is the exceptional case where ineffectiveness is apparent from the trial record. United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009); see United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005). Macias-Martinez believes that the current record shows egregious behavior on counsel’s part simply because he failed to raise those issues in the district court, but we would give “every indulgence” to the possibility that counsel’s decision was tactical, Recendiz, 557 F.3d at 531.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471163/ | ORDER
Kevin Kane petitioned for a writ of ha-beas corpus to compel the Bureau of Prisons to credit against his federal prison term the time he served in state custody before sentencing. See 28 U.S.C. § 2241. The district court dismissed Kane’s petition without prejudice on the ground that he filed it without first exhausting his administrative remedies. We affirm the judgment.
Kane was arrested by Illinois authorities in 2002 for home invasion and pleaded guilty to that charge in 2003. Pending his state sentencing, Kane was indicted by a federal grand jury for attempted possession with intent to distribute a controlled substance, see 21 U.S.C. §§ 846, 841(a)(1), and possession of a firearm in furtherance of a drug offense, see 18 U.S.C. § 924(c)(1)(A). He was turned over to federal authorities in July 2003 and, after pleading guilty to the federal chai-ges, remained housed in the Metropolitan Correctional Center in Chicago until June 8, 2004. On that day he appeared in state court and was sentenced on the home-invasion charge to four years imprisonment, which the Illinois court deemed satisfied by time served. Later that month state authorities released Kane into federal custody where, at last, a sentence of 78 months was imposed.
Kane was displeased that he would have to serve his entire federal sentence, having already spent approximately two years in jail, almost a year of which was at the Metropolitan Correctional Center, a federal facility. Using different procedural vehicles, Kane filed three motions in which he asked the district court to reduce his sentence based on his presentence incarceration. We are asked to review only the last of those, Kane’s § 2241 petition, which the district court dismissed without prejudice after the government pointed out that Kane had not initiated, let alone exhausted, his administrative remedies with the BOP.
A district court has no power to give credit for time served; that authority rests solely with the BOP. See United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (interpreting 18 U.S.C. § 3585); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir.1995); United States v. Pardue, 363 F.3d 695, 699 (8th Cir.2004). A district court, though, *269may review under § 2241 the BOP’s ruling on an inmate’s request for presentence credit. See United States v. Roller, 956 F.2d 1408, 1417 (7th Cir.1992); Rogers v. United States, 180 F.3d 349, 358 (1st Cir.1999). But even that review was unavailable to Kane because he did not address his request to the BOP in the first instance, and the district court reasonably concluded that he should have taken that step.
Although, as the government concedes, there is no express exhaustion requirement in 28 U.S.C. § 2241, a district court is entitled to require a prisoner to exhaust the administrative remedies that the BOP offers before it will entertain a petition. See generally McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992); see also Clemente v. Allen, 120 F.3d 703, 705 (7th Cir.1997) (requiring exhaustion). And the BOP has an extensive set of procedures available to inmates. See 28 C.F.R. §§ 542.10 to 542.16. We need not decide here how far the exhaustion requirement goes or what exceptions should be recognized; we may assume that exhaustion would not be required if it were futile, and we may also assume (as the government argues) that a district court’s decision to require exhaustion should be reviewed for an abuse of discretion.
Kane concedes that he did not use administrative channels to ask the BOP for presentence credit, but he argues on appeal that he should be excused from the exhaustion requirement because, as he reads the governing statute, 18 U.S.C. § 3585(b), the BOP is barred from awarding him the credit he wants and thus exhaustion would be futile. The state of Illinois gave Kane credit for the time he spent in custody before his federal sentencing, including the months he was housed in the Metropolitan Correctional Center, and thus, Kane reasons, the BOP is precluded from counting that same time against his federal sentence. See 18 U.S.C. § 3585(b); United States v. Ross, 219 F.3d 592, 594 (7th Cir.2000); United States v. Rivers, 329 F.3d 119, 121 n. 1 (2d Cir.2003); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir.1998). Kane may well be correct that the BOP’s hands are tied, but he also may be mistaken. Until he asks, we cannot know whether it may yet be able to grant some relief. Compare Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (noting, in the context of the Prison Litigation Reform Act, that exhaustion often may lead to changes in conditions or circumstance that resolve, in whole or in part, the grievance). The district court here did not abuse its discretion when it decided that Kane must ask the BOP first for whatever it is he wants and give the BOP an opportunity to decide whether it is empowered or persuaded to do anything for him.
Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471165/ | ORDER
A jury convicted Tyree Terrell of distributing at least 50 grams of crack in *277violation of 21 U.S.C. § 841(a)(1), and he was sentenced to 360 months’ imprisonment. Terrell now appeals his conviction and sentence, but his appointed counsel has asked to withdraw because he cannot discern any nonfrivolous arguments to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s supporting brief is facially adequate, and Terrell has responded to our invitation under Circuit Rule 51(b) to comment on counsel’s submission. We limit our review to Terrell’s arguments and the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
At trial, a government agent testified that in March, 2006, a confidential informant told him that Terrell wanted to sell 63 grams of crack for $1,300. The agent called Terrell and, identifying himself as a friend of the informant, arranged for the three to meet in order to purchase the crack. Before the meeting, the agent equipped the informant with a device to record the conversation. When they arrived at the meeting, Terrell made a phone call to his source and asked for 63 grams of crack. The men then waited for a while, and Terrell, in an apparent attempt to bolster his credibility with the “buyers,” told them that he had previously been arrested and the court had set bail at $85,000. Eventually, the three men, joined by one of Terrell’s friends, drove to meet two men in a car in a hospital parking lot. The agent gave Terrell $1,300, and the informant and Terrell got into the back seat of the car. After a minute, the informant got out of the car and gave the agent 63 grams of crack. The next day the agent called Terrell a second time, and Terrell offered to sell him firearms. The following week, Terrell and the agent spoke again, and Terrell told the agent that he was ready to sell him another 63 grams of crack whenever he wanted it. Although the government had noted in a preliminary filing that the district judge should instruct the jury that the informant’s statements should be considered not for their truth but only to provide context for Terrell’s statements, at trial neither party requested such an instruction and the judge did not make one. The jury voted to convict Terrell on the sole count in the indictment of distributing over 50 grams of crack.
After trial, Terrell filed a pro se motion asking for new counsel and counsel moved to withdraw. The district court granted the motion and appointed new counsel, but several days after entering his appearance, Terrell’s second lawyer also moved to withdraw, citing a breakdown in communication. The district court granted that motion, too, and appointed a third attorney, Paul Camarena, who represents Terrell on appeal. Two weeks before sentencing, Terrell submitted a pro se letter to the court identifying a number of disagreements that he had with Camarena.
At Terrell’s sentencing hearing, the district court first addressed his letter. The district judge explained that Terrell could not advance arguments pro se while represented by counsel, noted that he was on his third lawyer, and told him: “[Wje’re at a point now where if you’re not satisfied with this attorney, you can certainly proceed on your own if that’s what you want to do. Otherwise we will proceed with your attorney and the motions and the issues that he has raised. The choice is yours.” Terrell opted to retain Camarena and proceed with sentencing and allocution.
The court then announced the sentence. It observed that Terrell qualified as a career offender because he was older than 18 when he committed this drug crime and *278had two prior felony convictions for armed robbery as well as a conviction for possession of a controlled substance with intent to deliver. See U.S.S.G. § 4B1.1. The court thus applied a base offense level of 37 under U.S.S.G. § 4Bl.l(b), which when combined with Terrell’s criminal history category of VI yielded an imprisonment range of 360 months to life. In considering the sentencing factors listed in 18 U.S.C. § 3553(a), the district judge placed particular emphasis on Terrell's lengthy criminal history of 11 convictions and 32 additional arrests, observing that it was “one of the most extensive [the judge had] seen.” The court then sentenced Terrell at the bottom of the guidelines range.
In his Anders submission, counsel first asks whether Terrell could argue that insufficient evidence supported the jury’s verdict. We would uphold Terrell’s conviction unless no rational trier of fact could have concluded, based on the evidence viewed in the light most favorable to the prosecution, that all of the elements of the charged crime were proved beyond a reasonable doubt. See United States v. Khattab, 536 F.3d 765, 769 (7th Cir.2008). To convict Terrell of distributing crack, the government had to prove that he (1) knowingly distributed 50 grams or more of crack and (2) knew that what he was distributing was a controlled substance. 21 U.S.C. § 841(a)(1); United States v. Graham, 315 F.3d 777, 781 (7th Cir.2003). A government chemist testified at trial that the substance was, in fact, over 50 grams of crack. And the government agent who attended the drug sale testified that he had asked Terrell to sell him crack and that at their arranged meeting he gave Terrell the money they had agreed upon for the crack. Although the agent did not see Terrell hand the crack to the informant — the exchange occurred in the car and the agent could not see through its windows — a rational jury could infer that Terrell knew that he had brokered the transaction to sell crack. We agree with counsel that the government presented enough evidence to sustain a conviction.
Terrell and counsel next turn to potential evidentiary issues. They initially consider whether Terrell could argue that some of the government’s testimony was inadmissible under Federal Rule of Evidence 404(b) as character evidence. Specifically, they point to Terrell’s recorded statements that he had guns for sale, would supply another 63 grams of crack if the agent needed it, and had previously been arrested and had bond set at $85,000.
Rule 404(b) prohibits the use of prior convictions or other evidence of bad acts to establish that the defendant is the kind of person who commits crimes. See United States v. Ross, 510 F.3d 702, 713 (7th Cir.2007). The rule does, however, permit the government to introduce evidence of prior bad acts to prove other material facts, including identity and knowledge. Id. Here, Terrell has waived a challenge to the admission of his prior arrest and bail because he stipulated to those facts, see United States v. DeSilva, 505 F.3d 711, 718 (7th Cir.2007), and in any event the statement was admissible to show that the speaker on the recording was Terrell, something that he denied, see United States v. Ellis, 548 F.3d 539, 544 (7th Cir.2008). As for the admissibility of Terrell’s claim that he could procure another 63 grams of crack at any moment, Terrell did not object to this evidence at trial, so we would review only for plain error. See United States v. Lewis, 567 F.3d 322, 326-27 (7th Cir.2009). And Rule 404(b) was not violated because Terrell’s claim that he had ready access to more crack was direct evidence of the charged crime insofar as it showed that he knew he was dealing in crack. See United States v. *279Lane, 323 F.3d 568, 579 (7th Cir.2003). Finally, Terrell also did not object to the agent’s testimony that Terrell offered to sell guns, so review again would be for plain error. The propriety of this testimony is more questionable — after all, it is not direct evidence of Terrell’s drug sales nor does it show identity, knowledge, or any other of the 404(b) exceptions. But any mistake in admitting this statement would not rise to the level of plain error, since even without it the evidence against Terrell was overwhelming. See United States v. James, 487 F.3d 518, 526 (7th Cir.2007). We therefore agree with counsel that any 404(b) argument would be frivolous.
Counsel and Terrell also ask whether Terrell could argue that the district court violated the Confrontation Clause by failing to instruct the jury not to consider the confidential informant’s side of the recorded conversations for the truth of the matter asserted. Terrell did not object to the informant’s statements at trial, so we would review their admission for plain error. See United States v. Irby, 558 F.3d 651, 655 (7th Cir.2009). Arguably the Confrontation Clause is not offended here, since we have held that the government may introduce audio tapes of conversations between the defendant and a confidential informant who did not testify at trial so long as the informant’s statements are presented only to put the defendant’s side of the conversation in context. See United States v. Nettles, 476 F.3d 508, 517 (7th Cir.2007); United States v. Tolliver, 454 F.3d 660, 666 (7th Cir.2006). To the extent that the informant’s statements might have been considered for their truth, the court’s failure to warn the jury that this use was improper — an instruction neither party requested at trial — was not plain error. The other evidence against Terrell, including the agent’s testimony describing the drug sale and Terrell’s own recorded statements of selling the drugs to the agent, easily supports the guilty verdict, even without the informant’s statements. See Irby, 558 F.3d at 656; United States v. Prude, 489 F.3d 873, 880 (7th Cir.2007).
Terrell and counsel next ask whether Terrell could argue that the district court erred by not allowing him to substitute counsel for a third time. District courts have considerable discretion on requests for substitute appointed counsel, and we would review the court’s ruling only for an abuse of discretion. See United States v. Burgos, 539 F.3d 641, 645-46 (7th Cir.2008). We look at three factors in resolving such inquiries: (1) the timeliness of the motion; (2) the adequacy of the court’s inquiry into the motion; and (3) whether the breakdown between lawyer and client was so great as to result in a total lack of communication, precluding an adequate defense. United States v. Ryals, 512 F.3d 416, 419 (7th Cir.2008).
Terrell filed his pro se letter outlining his dispute with Camarena two weeks before the sentencing hearing, and so we may assume that the motion was timely filed. See id. But the other two factors would weigh against granting Terrell’s request. To begin with, it is unclear that Terrell even wanted a new lawyer; when the district judge asked him what he wanted, Terrell expressed only his desire to make pro se arguments. The judge then listened to his proposed arguments at length, explained to him that he could not both advance these arguments pro se and be represented by counsel, and asked Terrell and Camarena if they wished to proceed with sentencing (they said yes). Moreover, the court had granted two earlier requests for new counsel. And ultimately, on the record before us, Camarena provided an adequate defense at the sentencing hearing. We agree with counsel *280that it would be frivolous to challenge the district court’s discretionary refusal to appoint a fourth attorney. See Burgos, 539 F.3d at 646.
Terrell and counsel next raise two potential sentencing issues. Both Terrell and counsel consider whether the district court erred by commenting at length on Terrell’s extensive criminal history. Terrell contends that this amounts to plain error, but the argument is frivolous. Terrell never contested the accuracy of his criminal history as described in the presentence report. And district courts are expressly authorized to consider a defendant’s criminal history at sentencing. See 18 U.S.C. § 3553(a)(1) (instructing court to consider history and characteristics of the defendant); United States v. Gooden, 564 F.3d 887, 890-91 (7th Cir.2009) (relying on defendant’s extensive criminal history to support sentence).
Terrell and counsel also ask whether Terrell could challenge the reasonableness of his sentence. But as counsel correctly points out, a sentence within a properly calculated guidelines range, as occurred here, is presumptively reasonable. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007); United States v. Haney, 516 F.3d 553, 556 (7th Cir.2008). And here the district court gave meaningful consideration to the factors set forth in § 3553(a), including Terrell’s extensive criminal history, the need for deterrence, and the need to protect the public. Neither counsel nor Terrell are able to articulate any reason why this case might be the exception to the presumption of reasonableness, and so any argument to that effect would be frivolous.
Finally, Terrell raises a catalog of complaints that do not appear in counsel’s submission, ranging from his claim that his lawyer should have called the confidential informant as a witness to his belief that the government impermissibly altered the recordings of his conversations with the agent and informant. These remaining contentions are frivolous as well, and so we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471168/ | ORDER
Kotasubbarao Buddhi, a citizen of India, concedes that he has remained in the United States longer than allowed, but argues that an order of a federal magistrate judge in his son’s criminal case supersedes the depart-by date given to him when he entered the country. The magistrate judge’s order released the son into Buddhi’s custody, and Buddhi argues that the order required him to remain in the United States. An Immigration Judge and the Board of Immigration Appeals rejected Buddhi’s argument and the BIA rejected his motion to reconsider. He petitions for review from the denial of his motion to reconsider.
Buddhi came to the United States after his son Vikram, a graduate student at Purdue University, was indicted in federal district court. Based on several of Vi-kram’s internet postings, the government charged him with two counts each of threatening the president, the vice-president, both men’s wives, and the secretary of defense, as well as one count of threatening to damage buildings and real property. 18 U'.S.C. §§ 871(a), 879(a)(2), 875(c), 844(e). Buddhi arrived in June 2006 as a nonimmigrant visitor and was issued an 1-94 arrival form that gave him permission to remain in the country until September 6, 2006.
Shortly after Buddhi arrived, a magistrate judge granted bond to Vikram on the condition, among others, that Vikram remain in Buddhi’s custody. In April 2007, seven months after Buddhi should have left the United States, he asked Citizenship and Immigration Services to extend his stay so he could be present at his son’s trial, which was scheduled for June 2007. Buddhi’s written request suggests that he did not realize he was only permitted to remain in the country until September 6, 2006. Buddhi now says that he believed he could remain until his visa expired on May 31, 2007. While the government considered Buddhi’s request, Vikram was tried and the jury voted to convict on all counts. See Editorial, Budhi Conviction Constitutional Threat?, Post-Tribune (Merrillville, Ind.), July 6, 2007, at A8; Andy Grimm, Purdue Grad Student Guilty, Post-Tribune (Merrillville, Ind.), June 29, 2007, at A3. (According to the *283district court’s docket, Vikram’s sentencing is scheduled for November 11, 2009.) One month after the jury’s verdict, the government denied Buddhi’s request to extend his stay because he had filed the request after his authorized stay expired without explaining the delay. See 8 C.F.R. 214.1(c)(4).
After the government rejected Buddhi’s request to extend his stay, it began removal proceedings against him. At a hearing before an immigration judge, Buddhi argued that his presence in the United States was lawful because the magistrate judge’s bond order releasing Vikram into his custody obligated him to remain in the country. Although Buddhi’s submission to the IJ noted his confusion over the different dates on his visa and his arrival form, the IJ did not address that issue in its order, ruling only that the magistrate judge’s order could not have extended the time that the government allowed Buddhi to remain in the United States. Accordingly, the IJ found Buddhi removable.
Buddhi appealed to the BIA, which affirmed. First, the BIA agreed with the IJ that the magistrate judge’s order had no bearing on Buddhi’s right to remain in the United States. Next, the BIA found that the IJ did not make any procedural or due process errors, and even if it had, those errors were not prejudicial. Finally, the BIA found that Buddhi’s argument that he was permitted to remain in the country until the date his visa expired was moot because the government did not initiate removal proceedings until after May 31, 2007, the date the visa expired. Buddhi did not petition us to review the BIA’s decision. Instead, he timely filed a motion to reconsider, which the BIA denied because it found no errors of fact or law in its earlier decision. In addition to reiterating the reasoning of that decision, the BIA also noted that the government’s decision not to extend Buddhi’s stay was unre-viewable. See 8 C.F.R. § 214.1(c)(5) (“There is no appeal from the denial of an application for extension of stay filed on Form 1-129 or 1-539.”)
Buddhi petitions for review of the BIA’s order denying his motion to reconsider. In Johnson v. Mukasey, 546 F.3d 403, 404 (7th Cir.2008), we held that we lacked jurisdiction to review the BIA’s denial of a motion to reconsider, but the motion in that case, petitioner’s third, had been denied as untimely. By contrast, Buddhi’s motion was his first, it was timely filed, and the BIA denied it on the merits. Although we have interpreted 8 U.S.C. § 1252(a)(2)(B)(ii), to divest us of jurisdiction to review most discretionary decisions, including those often involved in the denial of a motion to reconsider or a reopen, id.; Kucana v. Mukasey, 533 F.3d 534 (7th Cir.2008), we retain jurisdiction to review decisions that involve a pure error of law or the denial of a constitutional right, Johnson, 546 F.3d at 404. Buddhi’s principle argument in his motion to reconsider was that the BIA misinterpreted the magistrate judge’s order; that is a question of law that we may review. See Patel v. Holder, 563 F.3d 565, 568 (7th Cir.2009) (“Legal questions include challenges to the BIA’s interpretation of a statute, regulation, or constitutional provision.”)
Buddhi’s contention is that the magistrate judge’s order releasing his son into his custody overrode his depart-by date, but this argument rests on a misconception of our country’s immigration laws. In the United States, the federal political branches have the presumptive power to determine immigration status; the courts are limited to reviewing those determinations as provided by law. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-43, 70 S.Ct. 309, 94 L.Ed. 317 (1950); Kiyemba v. Obama, 555 F.3d *2841022, 1025-26 (D.C.Cir.2009) (collecting cases). Buddhi has pointed to no law that would give a magistrate judge the power to extend an alien’s permitted stay-through a bond order regarding the alien’s son. But putting aside the question whether the magistrate judge had such power, his order does not purport to exercise it. Buddhi seems to think that had he left the country as required, he would have violated the magistrate judge’s order. Not so. The person in danger of violating the order if Buddhi left the country was Bud-dhi’s son. And the remedy for that potential violation was not for Buddhi to remain in the country illegally. It was for his son to return to court and seek a modification of the bond order.
Buddhi’s next argument is a challenge to the decision by Citizenship and Immigration Services to deny his request to extend his stay in the country, but neither we nor the BIA have jurisdiction to review that decision. First, we note that Buddhi’s argument rests on a misconception about the legal significance of the expiration date on his visa (May 31, 2007) and the depart-by date on his arrival form (September 6, 2006). Buddhi seems to think that the border agent who processed his arrival erred by permitting him to stay in the country for only 90 days, until September 6, rather than the full year until his visa expired. If Buddhi had been allowed to stay until his visa expired in May 2007, his request to extend his stay, submitted in April 2007, would have been timely. See 8 C.F.R. § 214.1(c)(4). But the border agent was not required to allow Buddhi to stay for the duration of his visa, and Buddhi’s time for asking to extend his stay lapsed when his authorized stay expired in September. See id. The granting of a visa and the granting of admission to the United States are distinct acts undertaken by distinct agencies, the Department of State for visas and the Department of Homeland Security for admission. Accordingly,“[t]he period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States.” 22 C.F.R. § 41.112(a). The issuance of a visa does not guarantee admission at all. See 8 U.S.C. § 1201(h).
Even if Buddhi’s belief that he could remain in the country until his visa expired explains his untimely request to extend his stay, the BIA and the IJ, which are part of the Department of Justice, were powerless to review the decision of CIS to deny the request. Although Buddhi could have asked CIS to reconsider its decision under 8 C.F.R. § 103.5, no agency appeal to the Department of Justice is permitted from that decision, id. at § 214.1(c)(5). The decision is one committed by statute to the Secretary of Homeland Security, see 8 U.S.C. § 1184(a)(1); 6 U.S.C. §§ 202, 557.1 Thus, under 8 U.S.C. § 1252(a)(2)(B)(ii), we lack jurisdiction to review it as well. See CDI Information Services, Inc. v. Reno, 278 F.3d 616, 620-21 (6th Cir.2002).
Buddhi’s remaining arguments all relate to the procedures that led to his final order of removal. First, Buddhi complains that his detention by immigration authorities prevented him from seeking review of CIS’s denial of his request to extend his stay. Buddhi was in custody from *285August 21, 2007 to August 28, 2007, which may have made it difficult to ask CIS to reconsider its decision by August 29, 2007, 30 days after the decision. 8 C.F.R. § 103.5. But Buddhi’s custody did not make seeking reconsideration impossible, and even if it did, untimely filing may be excused. Id. Thus, Buddhi was not prevented from asking CIS to reconsider its decision. Buddhi also complains about the manner of his arrest and detention and that he was a victim of selective prosecution. But we lack jurisdiction to consider those claims. See Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir.2008) (detention); Hussain v. Keisler, 505 F.3d 779, 783-84 (7th Cir.2007) (selective prosecution); Iqbal Ali v. Gonzales, 502 F.3d 659, 665 (7th Cir.2007) (same).
Finally, Buddhi argues, as he did in his motion to reconsider, that the IJ was biased against him and prevented him from saying everything he wanted to say, thereby denying him a full and fair hearing. Because the denial of a full and fair hearing could constitute a denial of the constitutional right to due process, see Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir.2008), we have jurisdiction to review this issue, see Duad v. United States, 556 F.3d 592, 595 (7th Cir.2009). But our review of the hearing shows that the IJ acted properly. True, the IJ did stop Buddhi from speaking at times, but Buddhi does not point to any argument or evidence that he was not allowed to put before the IJ. The IJ’s management of Buddhi’s presentation of the case demonstrates “an effort to keep the [hearing] moving, not an impermissibly biased tribunal.” Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir.2008). And even if the IJ did err in limiting Buddhi’s presentation, Bud-dhi could not prevail because our consideration here of each of his arguments shows that any error was not prejudicial. See Tariq v. Keisler, 505 F.3d 650, 657 (7th Cir.2007).
Accordingly, we DISMISS Buddhi’s petition to the extent that it challenges the decision by CIS, his detention, and his prosecution; we otherwise DENY the petition.
. We note that 8 U.S.C. § 1184(a)(1) actually says that "admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe," but the Homeland Security Act of 2002, expressly transferred that responsibility to the Secretary of Homeland Security, 6 U.S.C. § 202, and 6 U.S.C. § 557 commands us to read § 1184(a)(1) as if it refers to the Secretary of Homeland Security. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475624/ | *536SUMMARY ORDER
Substantially for the reasons stated in the District Court’s Memorandum and Order, 2008 WL 4386764, dated September 23, 2008, we conclude that the Defendants Appellee’s motion to dismiss the complaint was properly granted. Accordingly, we AFFIRM the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475625/ | OPINION
PER CURIAM.
Appellant Norman Cadmus appeals from an order of the District Court dismissing his complaint. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
I.
In July 2008, Cadmus, a pro se prisoner, filed a civil rights action pursuant to 42 U.S.C. § 1983 against Defendants George W. Bush and The United States of America.1 In his complaint, Cadmus challenged the constitutionality of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. Specifically, he alleged that its prescribed one-year statute of limitations for filing a federal habeas challenge to a state court conviction improperly overlaps with Pennsylvania’s one-year statute of limitations for filing a petition under its Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann. § 9541 et seq. (2009). Cadmus claimed that this overlapping violates his rights under the First, Fifth, and Fourteenth Amendments.
The District Court dismissed Cadmus’ complaint as to both defendants and Cad-mus filed a timely appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of the District Court’s sua sponte dismissal of Cadmus’ complaint is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). We may affirm the District Court on any basis supported by the record. See Fairview Twp. v. EPA, 773 F.2d 517, 525 n. 15 (3d Cir.1985).
Cadmus’ complaint was properly dismissed. In March 2008, Cadmus filed a habeas petition pursuant to 28 U.S.C. § 2254 in the District Court which remains pending, see Cadmus v. Warden, SCI Coal Twp., Civ. No. 08-cv-473. Cadmus does not allege that he has been precluded from seeking federal habeas relief and the District Court has yet to consider how the *560limitations period under AEDPA applies to his case. Accordingly, he has suffered no actual injury under the statute for which he may seek redress at this time. See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006).
Furthermore, Cadmus provides no authority supporting his claim that AEDPA is unconstitutional as a result of its alleged “overlapping” with the PCRA. In fact, as the District Court pointed out, the limitations period under AEDPA has survived numerous constitutional challenges. See Green v. White, 223 F.3d 1001, 1003-04 (9th Cir.2000); Miller v. Marr, 141 F.3d 976, 977-78 (10th Cir.1998); Tinker v. Moore, 255 F.3d 1331, 1334 (11th Cir. 2001). Should Cadmus wish to further challenge the constitutionality of AEDPA as it applies to his case, he should do so in the context of his pending habeas action.
As Cadmus’ appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6.
. The District Court construed Cadmus’ claim against former President Bush as one properly raised under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475627/ | OPINION
PER CURIAM.
Kenyatta Darnell Henry appeals pro se from the District Court’s order denying his motion under 18 U.S.C. § 8582(c)(2) to modify his sentence. Because this appeal presents no substantial question, we will summarily affirm. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
In May 2007, Henry pleaded guilty to possession with intent to distribute 50 grams or more of cocaine base and cocaine. See 21 U.S.C. § 841(a)(1). The pre-sentence report identified Henry’s drug quantity as 410 grams of crack cocaine and 22 grams of powder cocaine. Because the offense involved different controlled substances, the quantities were converted to a marijuana equivalent, which in this case was approximately 8200 kilograms. See U.S.S.G. § 2D1.1, Application Note 10. Therefore, the District Court assigned a base offense level of 34.1 See U.S.S.G. § 201.1(c). That level was reduced by three points for acceptance of responsibility. See U.S.S.G. §§ 3E1.1. With a total offense level of 31, and a criminal history category of VI, Henry’s guidelines sentencing range was 188 to 235 months of imprisonment. In a Judgment entered on August 23, 2007, the District Court sentenced Henry to 188 months of imprisonment.
The Sentencing Commission later adopted and made retroactive Amendment 706, which “decrease[d] by two levels the base offense level for crack cocaine offenses.” United States v. Wise, 515 F.3d 207, 219 (3d Cir.2008). Henry filed a counseled motion under 18 U.S.C. § 3582(c)(2), to modify his sentence on the basis of that amendment. The Government filed a brief in opposition. By order entered July 1, 2009, the District Court denied the motion. Henry appeals.
We have jurisdiction under 28 U.S.C. § 1291.2 We review the District Court’s interpretation of the Guidelines de novo and its ultimate disposition of a § 3582(c)(2) motion for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). We perceive no abuse of discretion here.
Section § 3582(c)(2), the provision permitting a district court to reduce a term of imprisonment following a change in the Sentencing Guidelines, provides that the court must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.” See also U.S.S.G. § 1B1.10 cmt. n. l(B)(i) (“Consistent with § 3582(c)(2), the court shall consider the *562factors set forth in 18 U.S.C. § 3553(a) in determining ... whether a reduction in the defendant’s term of imprisonment is warranted ....). Those factors include, inter alia, “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). In this case, the District Court determined that Amendment 706 lowered Henry’s base offense level by two, from 34 to 32. See U.S.S.G. § 2D1.1, Application Note 10(D). With three points subtracted for acceptance of responsibility, and a criminal history category of VI, Henry’s amended guideline range was 151 to 188 months of imprisonment. Therefore, Henry was eligible for a sentence reduction of up to 37 months.
The District Court exercised its discretion not to reduce Henry’s sentence, however. After acknowledging that it was required to take into account the § 3553(a) factors, including “the nature and circumstances of the offense,” the District Court noted that Henry’s “drug dealing was so extensive that his base offense level was driven by his drug quantity under section 2Dl.l(e), while for most career offenders the drug-table offense level is trumped by the offense level in section 4Bl.l(b). Given the quantity of drugs Defendant distributed, no reduction in sentence is appropriate.” In making its determination, the District Court referred to the arguments made by the Government, which emphasized that Henry’s offense involved several episodes of large-scale drug distribution. See United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir.1997) (holding that the district court adequately considered the § 3553(a) factors by briefly stating that it had reviewed the government’s brief, which set out the pertinent factors and enumerated facts relevant to those factors). Under these circumstances, we believe that the District Court set forth sufficient reasons for its decision to deny Henry’s § 3582(c)(2) motion. See United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.1996) (stating that when adjudicating a § 3582(c) motion “[tjhere is no requirement that the district court make specific findings regarding each of the [§ 3553(a) ] factors as long as it states the reasons for its actions.”); cf. United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006) (citation omitted) (“Nor must a court discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.”).
Because we conclude that there was no abuse of discretion, we will summarily affirm the judgment of the District Court.
. Henry was a career offender, and the career offender sentencing guidelines called for an offense level of 32. But those guidelines do not apply unless the base offense level they establish is "greater than the offense level otherwise applicable.” U.S.S.G. § 4B 1.1(b).
. The time for filing an appeal from a ruling on a § 3582(c)(2) motion is governed by the provisions of Fed. R.App. P. 4(b) applicable to criminal proceedings. See United States v. Espinos a-Talamantes, 319 F.3d 1245, 1246 (10th Cir.2003) (collecting cases). Thus, Henry had until Monday, July 13, 2009, to file a timely appeal. See Fed. R.App. 4(b)(1)(A), 26(a)(3). Henry filed his notice of appeal on July 20, 2009, claiming that he did not receive a copy of the order until July 16, 2009. We need not determine whether these circumstances entitle him to relief. In the wake of Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), every Court of Appeals to have addressed the issue has concluded that the time limitation contained in Rule 4(b), unlike that contained in Rule 4(a), is not jurisdictional but is instead a claims processing rule whose application can be forfeited. See, e.g., United States v. Frias, 521 F.3d 229, 233-34 (2d Cir.2008). In this case, the Government has not sought to enforce the time limitation. Accordingly, we will reach the merits of Henry’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471173/ | MEMORANDUM **
We lack jurisdiction over Masengi’s asylum claim because it was untimely filed. See Husyev v. Mukasey, 528 F.3d 1172, 1178 (9th Cir.2008).
Masengi is not eligible for withholding of removal under 8 U.S.C. § 1231(b)(3) or the Convention Against Torture, because substantial evidence in the record supports the BIA’s determination that Masengi does not face a clear probability of either persecution on account of his race and religion or torture, see Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000), even taking into account his membership in disfavored reli*300gious and racial groups, see Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir.2009). There is no evidence of IJ bias with respect to Masengi’s contention that the IJ had a pre-conceived notion of conditions in Indonesia such that the IJ believed that no individual from that country could establish a grounds for relief. Likewise, there is no basis for Masengi’s claim that the IJ’s decision was based on speculation rather than substantial evidence in the record.
Masengi waived any legal argument regarding the propriety of the IJ’s exclusion of his expert witness by failing to develop a coherent legal argument in his brief to this court regarding why the IJ erred. See Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir.2001).
PETITION 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/8471176/ | MEMORANDUM *
William Dalton appeals the district court’s grant of summary judgment dismissing his 42 U.S.C. § 1983 and pendent state law claims against his former employer, the Washington State Department of Corrections (“DOC”), and his former supervisors, Joseph Lehman (former Secretary of the DOC), Alice Payne (former Prison Superintendent), and Jane Robinson (former Health Care Manager). Dalton alleges that he was terminated from employment as a nurse at the McNeil Island correctional facility (the “Prison”) for statements he made about conditions at the Prison’s health care facility. We affirm in part, reverse in part, and remand.
1. Dalton’s May 2001 testimony to the risk management task force and his related letter to various public officials are undisputedly protected speech. Whether that speech was a “substantial or motivating factor” is a question of fact, Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir.2009), that is typically left to the trier of fact, Allen v. Scribner, 812 F.2d 426, 436 (9th Cir.1987) (observing that the issue of motivation generally presents a jury question), amended, 828 F.2d 1445 (9th Cir.1987). We have previously held “that circumstantial evidence created a genuine issue of material fact on the question of retaliatory motive” where the plaintiff produces evidence both that (1) his employer knew of his speech and (2) there is “proximity in time between the protected action and the allegedly retaliatory employment decision.” See Keyser v. Sacramento City Unified School Dist., 265 F.3d 741, 751 (9th Cir.2001) (citing Schwartzman v. Va*303lenzuela, 846 F.2d 1209, 1212 (9th Cir.1988)).
Here, Dalton presented evidence that Lehman, who gave final approval of Dalton’s termination, was aware of Dalton’s testimony. Although Payne and Robinson averred no knowledge of Dalton’s testimony and letter, Lehman stated that he may have called Payne regarding Dalton’s testimony. Dalton also presented evidence that he suffered adverse employment decisions within approximately one year of his testimony. Because Lehman knew of Dalton’s testimony and may have communicated that knowledge to Payne, and because Dalton was dismissed within a year of that testimony, an inference of retaliation might reasonably be drawn. See, e.g., Allen v. Iranon, 288 F.3d 1070, 1078 (9th Cir.2002) (“Although an inference from temporal proximity would have been stronger had the gap in time been smaller, an eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.”).
Viewing this circumstantial evidence in the light most favorable to Dalton, the non-moving party, Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.2004), we conclude that there are genuine issues of material fact on the question of whether Dalton’s testimony before the risk management task force was a substantial motivating factor in Lehman and Payne’s decision to terminate him. However, Dalton has presented no evidence that Robinson knew of Dalton’s testimony before the risk management task force; therefore we affirm the district court’s dismissal of this claim as against Robinson.
2. The district court correctly concluded that Dalton’s emails to his coworkers and immediate supervisors regarding equipment and emergency protocols are not protected speech, because they arose from and are directly related to his performance of official duties as a nurse at the Prison. S.ee Garcetti v. Ceballos, 547 U.S. 410, 421-22, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
3. Dalton has not met his burden of showing that his future testimony in the Montgomery lawsuit was a substantial or motivating factor in his termination. See Eng, 552 F.3d at 1071. Dalton was terminated before he testified in the lawsuit and before he was even identified as a potential witness by the plaintiff in that case. The record does not show that Robinson actually knew that Dalton was going to be a witness. Dalton has also not shown that Lehman or Payne knew that Dalton would be a witness in the lawsuit. Even if we assume that Robinson did know, Dalton failed to provide more than “mere evidence” that Robinson was aware of his future testimony, which is required in order to establish a genuine material dispute as to whether his potential testimony was a substantial motivating factor for his termination. See Keyser, 265 F.3d at 751. Third, Dalton has failed to show why his testimony in a lawsuit (that did not involve Lehman, Payne, or Robinson) would lead them to retaliate against him.
4. Under Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Appellees may be able to show that Dalton would have been terminated even absent his testimony before the risk management task force. The Appellees have presented substantial justifications for Dalton’s termination (Dalton’s failure to properly assess the cardiac patient and provide informed consent, giving an inmate a urinal from which to drink, and fading to call the on-call provider to get pain medication for an acute dental emergency). *304Whether the Appellees’ justifications are legitimate or merely pretext is a factual question for the jury. See Eng, 552 F.3d at 1072 (citing Wagle v. Murray, 560 F.2d 401, 403 (9th Cir.1977) (per curiam) (“Mt. Healthy indicates the ‘trier-of-fact’ should determine whether the firing would have occurred without the protected conduct.”)). Therefore, a genuine issue of material fact remains as to whether Dalton’s testimony before the risk management task force was the “but for” cause of his termination.
5. The district court did not err in dismissing Dalton’s due process claim. The record is undisputed that Dalton received written notice, was afforded both a pre-termination hearing and a follow-up meeting (in which he was represented by the Union), was confronted with the evidence against him, and was allowed to tell his story. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
Dalton has presented no evidence to support his claim that Payne, acting as a quasi-judicial fact finder in an administrative proceeding, was biased. In any event, this claim is not timely. See, e.g., Skokomish Indian Tribe v. U.S., 410 F.3d 506, 519 (9th Cir.2005) (en banc) (“A motion for recusal must be made with reasonable promptness after the ground for such a motion is ascertained.”) (internal citations and quotations omitted). Any bias would have been plainly evident at the time of the hearing, yet neither Dalton nor his Union representative objected, and Dalton has not shown any justification for his delay in raising this claim.
6. The district court properly dismissed Dalton’s common law claims. The personnel reports and communications from Payne (that are the basis of Dalton’s common law claims) are privileged under Washington state law. See Wash. Rev. Code § 18.130.070(3); Patterson v. Supt. of Pub. Instruction, 76 Wash.App. 666, 887 P.2d 411, 415 (1994). Further, nothing in Payne’s statements is extreme, outrageous, or a breach of any duty identified by Dalton.
7. Dalton’s claims that the district court considered inadmissible evidence are without merit. Although the district court did not rule on Dalton’s motion to strike various hearsay assertions, there is nothing in this record to indicate that the district court relied on these assertions when ruling on the merits of the motion for summary judgment.
8. We remand the issue of qualified immunity, “which should be addressed by the district court in the first instance.” Swift v. California, 384 F.3d 1184, 1193 (9th Cir.2004).
Each party to bear their own costs on appeal.
AFFIRMED in part, REVERSED 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/8471177/ | MARSHALL,* District Judge.
MEMORANDUM **
In these consolidated appeals, Appellants Terry Collingsworth and Paul L. Hoffman appeal the district court’s order imposing sanctions under Federal Rule of Civil Procedure 11. In addition, Hoffman appeals the district court’s denial of his motion for reconsideration of the sanctions order. We have jurisdiction over the appeals pursuant to 28 U.S.C. § 1291. We review the district court’s Rule 11 sanctions order for abuse of discretion, and we vacate and remand so that the district court can reevaluate the imposition of sanctions in light of this decision. Holgate v. Baldwin, 425 F.3d 671, 675 (9th Cir.2005). We review the district court’s denial of a motion for reconsideration for abuse of discretion, and we reverse. Smith v. Pac. Props. and Dev. Corp., 358 F.3d 1097, 1100 (9th Cir.2004).
The parties are familiar with the facts of this case, which are extensive. Therefore, we do not repeat them here, except as necessary to explain our decision. However, before we reach the merits of the appeals, we explain the basis of our jurisdiction to hear Collingsworth’s appeal.
I. JURISDICTION
The district court issued its order imposing Rule 11 sanctions on October 16, 2007, 2007 WL 3036093. Collingsworth filed a Notice of Appeal of the district court’s Rule 11 order on November 15, 2007. Although the district court entered final judgment on that same date, Collingsworth did not amend his Notice of Appeal to appeal from the subsequently entered judgment.1
Appellate jurisdiction is ordinarily limited to appeals from “final decisions of the district courts.” 28 U.S.C. § 1291. Under the collateral order doctrine, the Supreme Court has allowed jurisdiction over certain types of collateral orders that do not end the litigation. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under this doctrine, we have held that an order imposing Rule 11 sanctions upon counsel, a nonparty, is final and appealable by the attorney sanctioned upon imposition of the sanction. Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1338-39 (9th Cir.1995) (citations omitted). However, in Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 210, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999), the Supreme Court “effectively overruled earlier Ninth Circuit decisions allowing immediate appeal by attorneys from orders imposing sanctions” when the Court held that a sanctions order under Rule 37(a) against an attorney was not “final” for purposes of § 1291. Stanley v. Woodford, 449 F.3d 1060, 1063 (9th Cir.2006).
In Stanley, we extended the Supreme Court’s decision in Cunningham to appeals from sanctions imposed against attorneys under 28 U.S.C. § 1927 and the court’s inherent powers. Id. at 1065. In extending the ruling of Cunningham, the Stanley court reasoned that the “policies undergirding Rule 37(a) sanctions are not relevantly different from those justifying *307sanctions under § 1927 or a court’s inherent powers.” Id. at 1064. Moreover, in Stanley, we recognized that we had “already expanded Cunningham beyond Rule 37(a)” to prohibit interlocutory appeals of orders imposing Rule 16(f) sanctions and granting attorney’s fees as a condition of substituting counsel. Id. (discussing Cato v. Fresno City, 220 F.3d 1073, 1074 (9th Cir.2000) and Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 897 (9th Cir.2001)).
The rationale of Cunningham and Stanley equally apply here. Like sanctions imposed under Rule 37(a), § 1927, and the court’s inherent power, Rule 11 sanctions “invoke[ ] concerns regarding finality, avoiding piecemeal appeals, and availability of effective appellate review.” See Stanley, 449 F.3d at 1064. (citations omitted). Accordingly, Collingsworth’s appeal is not an appeal from a final order, but, rather, is an interlocutory appeal.
Despite the foregoing, we have jurisdiction over Collingsworth’s appeal pursuant to Federal Rule of Appellate Procedure 4(a)(2) and the “subsequent events” doctrine. Rule 4(a)(2) provides that “[a] notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.” The Supreme Court has held that Rule 4(a)(2) permits a notice of appeal from a non-final decision to operate as a notice of appeal from the final judgment “only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.” FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991) (emphasis in original). In so holding, the FirsTier court stated in dicta that Rule 4(a)(2) does not permit “a notice of appeal from a clearly interlocutory decision — such as a discovery ruling or a sanction order under Rule 11 ... — -to serve as a notice of appeal from the final judgment.” Id.
In cases decided after FirsTier, we have held that the subsequent events doctrine can cure a prematurely filed appeal of a clearly interlocutory order. See, e.g., Special Invs. Inc. v. Aero Air Inc., 360 F.3d 989, 993 (9th Cir.2004) (“[A] prematurely filed notice of appeal can be cured if the rest of the claims are disposed of in a subsequent final decision terminating the litigation.”); Eastport Assocs. v. City of L.A. (In re Eastport Assocs.), 936 F.2d 1071, 1075 (9th Cir.1991) (“[T]he rule in this circuit [is] that once a final judgment is entered, an appeal from an order that otherwise would have been interlocutory is then appealable.”)
We find Cato v. Fresno City, 220 F.3d 1073 (9th Cir.2000) (per curiam) to be instructive. In Cato, we exercised jurisdiction over an appeal of a Rule 16(f) sanctions order that was filed prior to the entry of judgment. See Cato, 220 F.3d at 1074-75. In relying on the subsequent events doctrine, the court stated: “We take a pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule.” Id. (internal quotations omitted).
Contrary to Appellees’ arguments, FirsTier is not applicable to this case. Here, Collingsworth has filed an appeal of an interlocutory order. He is not, as the Supreme Court cautioned in FirsTier, attempting to use his notice of appeal of the sanctions order to serve as a notice of appeal of the final judgment dismissing the claims of three Plaintiffs. Cf. FirsTier, 498 U.S. at 276, 111 S.Ct. 648. Rather, he is appealing the sanctions order itself and FirsTier does not bar the application of the “subsequent events” doctrine to his appeal.
*308The circumstances surrounding Collingsworth’s Notice of Appeal support this court’s exercise of jurisdiction pursuant to the subsequent events doctrine. Collingsworth filed his Notice of Appeal of the sanctions order on the same day the district court entered judgment. As a result, any defect in his appeal was cured almost instantly. Moreover, by the time Collingsworth appealed, the district court had already granted summary judgment in favor of Defendants and dismissed the three Plaintiffs’ claims with prejudice. Thus, at the time the district court issued its sanctions order, all that was left to do with respect to the dismissed Plaintiffs’ claims was the ministerial task of entering judgment. Accordingly, in keeping with the “pragmatic approach” adopted by this court, we find that we have jurisdiction to hear Collingsworth’s appeal.
II. SANCTIONS ORDER
The sanctions order in this case followed the district court’s order dismissing the claims of three Plaintiffs with prejudice after Defendants-Appellees alerted the district court that the Plaintiffs in question had fabricated their cancer claims. Shortly after the district court dismissed the claims, on August 9, 2007, Defendants moved for sanctions pursuant to the district court’s inherent authority. Although Defendants asserted that Plaintiffs’ counsel had violated their Rule 11 duties, Defendants expressly based their request for attorneys’ fees on the district court’s inherent power.
On September 10, 2007, without ruling on Defendants’ motion, the district court issued an order to show cause stating:
Pursuant to FRCP 11(c)(1)(B),2 Cristo-bal Bonifaz and all plaintiffs’ counsel and their law firms (namely, Paul L. Hoffman and Terry Collingsworth) who signed any complaint or amended complaint herein are ordered to show cause why each counsel should not be sanctioned for the conduct set forth in defendants’ pending FRCP 11 motion.... Said plaintiffs’ counsel shall also respond to the alternate ground of sanction based on the inherent power of the Court.
On October 16, 2007, the district court sanctioned attorneys Bonifaz,3 Collings-worth and Hoffman pursuant to Rule 11(c)(1)(B). In sanctioning the attorneys, the district court found that the cancer and cancer-related claims made on behalf of the Plaintiffs in question “were baseless and made without reasonable and competent inquiry.”
In United Nat’l Ins. Co. v. R & D Latex Corp., we held that sua sponte Rule 11 sanctions “will ordinarily be imposed only in situations that are akin to a contempt of court.” 242 F.3d 1102, 1116 (9th Cir.2001) (quoting Barber v. Miller, 146 F.3d 707, 711 (9th Cir.1998)) (emphasis in original). Therefore, prior to imposing court-initiated sanctions, the district court is required to determine whether counsel’s conduct is “akin to contempt.” See id. at 1118 (reversing district court’s sua sponte sanctions order where counsel’s conduct was *309“in neither purpose nor substance ‘akin to contempt.’ ”)
Here, the district court applied a “reasonableness” standard, which is the appropriate standard for party-initiated, but not court-initiated, Rule 11 sanctions. Therefore, the district court abused its discretion in failing to apply the “akin to contempt” standard established by this court for court-initiated Rule 11 sanctions, and we remand so that the district court may consider whether Collingsworth’s and Hoffman’s conduct was akin to contempt. See id. at 1116.
III. MOTION FOR RECONSIDERATION
“[A] motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999). As discussed above, district courts are required to apply the “akin to contempt” standard prior to imposing Rule 11 sanctions sua sponte. In denying Hoffman’s motion for reconsideration, the district court did not consider Hoffman’s arguments that an “akin to contempt” standard applied in this case. Accordingly, we find that the district court abused its discretion in denying the motion because its denial was based upon a “clearly erroneous” view of the law. McDowell v. Calderon, 197 F.3d 1253, 1255 & n. 4 (9th Cir.1999) (per curiam).
IV. CONCLUSION
We close with the following guidance for the district court with respect to the nature of the sanctions award. Under Rule 11, a district court is not permitted to impose Rule 11 sanctions payable to a party (e.g., in the form of reasonable attorneys’ fees) on the basis of a sua sponte show cause order. See Fed.R.CivP. 11(c)(4) (“The sanction may include non-monetary directives; an order to pay a penalty into court; or, if imposed on motion ..., an order directing payment to the movant of part or all of the reasonable attorney’s fees ....”) (emphasis added); Barber, 146 F.3d at 711 (noting that “a monetary sanction imposed after a court-initiated show cause order [must] be limited to a penalty payable to the court”) (quoting Fed.R.Civ.P. 11 advisory committee’s note). Accordingly, any Rule 11 monetary sanction imposed pursuant to the court’s initiative must be in the form of a penalty payable to the court. See Barber, 146 F.3d at 711.
VACATED IN PART, REVERSED IN PART, AND REMANDED.
The Honorable Consuelo B. Marshall, United States District Judge for the Central District of California, sitting by designation.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. In contrast, although Hoffman too filed a Notice of Appeal of the Rule 11 order, he amended his initial notice of appeal after the district court entered judgment, thereby avoiding any jurisdictional issue.
. Rule 11 was amended in 2007 “as a part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules.” Fed.R.Civ.P. 11 advisory committee’s note. As a result of the amendments, former Rule 11(c)(1)(B) is reflected in current Rule 11(c)(3) and former Rule 11(c)(1)(A) is reflected in current Rule 11(c)(2). Except in the "Conclusion,” we reference the pre-2007 version of Rule 11, which was in effect at the time the district court entered its order.
. Bonifaz did not appeal the district court's sanctions order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471181/ | MEMORANDUM **
Nevada prisoner Frank Matylinsky (“Matylinsky”) appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He was convicted in Nevada State District Court of the murder of his wife and manslaughter of his unborn child and was sentenced to life without the possibility of parole.
I
After litigating both direct and habeas appeals in the Nevada state courts, Maty-linsky challenged his conviction in a federal habeas petition before the United States District Court for the District of Nevada.1 His original federal habeas petition was dismissed without prejudice for failure to exhaust claims in state court. He returned to state district court to exhaust those claims. However, the state court ruled that many of his unexhausted claims could have been raised in a previous petition, and therefore these claims were pro*313cedurally barred under Nevada law. See Bejarano v. State, 122 Nev. 1066, 146 P.3d 265, 269 (2006) (citing Nev.Rev.Stat. § 34.810(l)(b)). The Nevada Supreme Court agreed.
Matylinsky then returned to federal district court, which subsequently denied him relief. The federal district court first dismissed those claims deemed procedurally defaulted by the state courts as having been decided on adequate and independent state grounds. It also found that many other claims were never exhausted in the state courts. It therefore found that it lacked jurisdiction to review all these claims and dismissed them with prejudice. It reached the merits of four remaining issues including a sufficiency of the evidence claim and three ineffective assistance of counsel claims. However, it ultimately denied him relief on any of these claims.
Matylinsky sought a Certificate of Ap-pealability (“COA”) on the following issues: (1) those claims procedurally barred due to default in the state courts or failure to exhaust; (2) sufficiency of the evidence to support his conviction; (3) ineffective assistance of trial counsel; (4) ineffective assistance of appellate counsel; and (5) ineffective assistance of post-conviction (or habeas) counsel. We granted the COA for both claims (1) and (3), but denied the COA for the three remaining issues. Ma-tylinsky then filed timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
II
Federal courts will not review a question of federal law decided by a state court if the state court explicitly invokes a state procedural bar as the basis for its decision, and if that procedural bar constitutes an independent and adequate ground. Hill v. Roe, 321 F.3d 787, 789 (9th Cir.2003). “In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner’s purported default.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir.2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994)) (emphasis omitted); see also Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989).
In Bargas v. Burns, 179 F.3d 1207, 1212 (9th Cir.1999), we examined whether Nevada’s “strict rule” requiring a petitioner to “raise all claims in his first habeas petition in order to avoid the penalty of procedural default” constituted an adequate and independent state ground. We held that it did. “Nevada case law has set forth a clear and regularly applied rule that a petitioner must pursue all avenues for relief if he wishes to preserve his claims. Thus, a petitioner ... must raise all claims in his first petition for post-conviction relief to the state trial court.” Id. (citing Johnson v. Warden, Nev. State Prison, 89 Nev. 476, 515 P.2d 63, 64 (1973)). This rule was “firmly established” and “regularly followed” at the time Matylinsky filed his first state habeas petition in January 1986. Id. at 1209,1212 (finding the rule established for a petitioner whose first petition was filed in December 1983); see also Dromiack v. Warden, Nev. State Prison, 97 Nev. 348, 630 P.2d 751, 752 (1981) (per curiam). The state court’s finding of procedural default was an adequate and independent state ground for denying those defaulted claims.2
*314Matylinsky claims that we should excuse the procedural default. As we said in Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir.2005), we cannot consider a “claim that is defaulted in state court pursuant to an adequate and independent procedural bar ... unless the petitioner demonstrates cause and prejudice for the default, or shows that a fundamental miscarriage of justice would result if the federal court refused to consider the claim.” Matylinsky has failed to establish evidence of cause for his default in state court. In addition, he has presented no argument regarding how a denial would result in a fundamental miscarriage of justice. Therefore, we affirm the dismissal of his claims which were deemed procedurally defaulted by the state court.
Ill
A state prisoner must also exhaust all constitutional claims in state court before a federal court can consider them. 28 U.S.C. § 2254(b)(1)(A), (c). Under § 2254(c), exhaustion typically requires that “state prisoners ... give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir.2003) (en banc). A petitioner must make the state courts aware of his intent to raise issues of federal law; merely pointing to a similar state law claim is “insufficient to exhaust.” Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Peterson, 319 F.3d at 1159-60.
The district court found that Matylinsky had failed to exhaust Grounds 2, 8, 9, 10, 15, and 18(1, K, L, Q, Y). With the exception of Ground 18(Q), we agree.3 Matylin-sky’s claims are either altogether absent from his state appeals or too attenuated from a claim raised in the state courts to be considered exhausted.
IV
Matylinsky filed a motion to expand the COA to include three additional claims: (1) whether substantial evidence supports his first degree murder conviction (Ground 14); (2) whether his appellate counsel was ineffective (Ground 19); and (3) whether his post-conviction counsel was ineffective (Ground 20). That motion is denied. See Hiivala v. Wood, 195 F.3d 1098, 1103-05 (9th Cir.1999) (per curiam); 9th Cir. R. 22-1 (e).
V
The district court order is AFFIRMED. The motion to expand the Certificate of Appealability is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3.
. In a concurrently filed opinion, we consi der and reject Matylinsky's claim that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Matylinsky v. Budge, 577 F.3d 1083 (9th Cir.2009). The facts of the case are stated there; we need not repeat them here.
. This refers to Grounds 1, 3, 4, 5, 6, 11, 12, 13, 16(A-D), 17, 18(B-C, F-G, J, O, BB-EE), and 21, raised in Matylinsky's initial third post-conviction petition, and Grounds 7 and 18(D, P, T), raised in his supplemental brief to his third post-conviction petition, all of which *314were dismissed by the Nevada Supreme Court.
. Ground 18(Q) is one of Matylinsky's myriad ineffectiveness of trial counsel claims. The merits of this claim are discussed in the corresponding published opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471183/ | MEMORANDUM **
Rahul Singh appeals pro se from the district court’s judgment in his civil rights action alleging that he was denied tenure and a promotion in retaliation for complaining about gender discrimination. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.2005) (res judicata); Fry v. Melaragno, 939 F.2d 832, 835 (9th Cir.1991) (absolute immunity); Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1090 (9th Cir.2008) (subject matter jurisdiction). We affirm.
The district court properly dismissed the action against defendants Marlin, Weber, Hayhurst, and Reed based on the doctrine of res judicata. Singh may not relitigate whether these defendants re*316taliated against him because those claims have already been litigated by the parties and their privies in state court and ultimately decided by the California courts in favor of defendants. See Singh v. Bd. of Trs. of the Cal. State Univ., No. D048076, slip op. at 8-11 (Cal. Ct.App. April 17, 2007); Singh v. Bd. of Trs. of the Cal. State Univ., No. S153042, slip op. at 1 (Cal. July 11, 2007); see also Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808 (9th Cir.2007) (describing elements of res judicata under California law).
The district court properly dismissed the action against defendant Westover based on the doctrine of absolute immunity. See Fry, 939 F.2d at 837 (concluding that absolute immunity applies “to the government attorney’s initiation and handling of civil litigation in a state or federal court,” and explaining that such immunity is necessary “[wjhether the government attorney is representing the plaintiff or the defendant ... ”).
The district court properly dismissed the action against defendants Joel and Jeremy Golden for lack of subject matter jurisdiction. Singh’s claims against these defendants, who represented Singh in the state court litigation, do not form “part of the same case or controversy” as the retaliation and termination claims, and Singh has alleged no other basis for subject matter jurisdiction. See 28 U.S.C. § 1367(a).
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/8475630/ | OPINION
PER CURIAM.
Jian Chen petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. The Government has moved to summarily affirm the BIA’s decision. For the reasons that follow, we will grant the motion and deny Chen’s petition.
I.
In May 2007, Chen, a native and citizen of the People’s Republic of China, entered the United States without inspection or valid entry documents. The Department of Homeland Security subsequently initiated removal proceedings against him, and he applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In support of his application, he claimed that family planning officials in China had forced his wife to have an IUD inserted and undergo an abortion, and that he feared returning to China because he had left the country illegally.
In July 2008, after a hearing on the merits, the Immigration Judge (“IJ”) denied Chen’s application. Although finding Chen’s testimony credible, the IJ concluded that the alleged persecution against Chen’s wife — who still lived in China — was insufficient to establish a claim for Chen himself. The IJ also rejected Chen’s claim that he would be persecuted for departing China illegally, concluding that “[tjhere was no corroborating documents to document these types of problems in the record.” (IJ Opinion at 4.) Finally, the IJ concluded that Chen failed to show that he was entitled to CAT relief.
On appeal, the BIA held that Chen “cannot establish eligibility for asylum or withholding of removal due to the claimed treatment of his spouse in connection with violation of the family planning policy law in China,” nor had he “submitted any evidence regarding ‘other resistance’ to a coercive population control program” or otherwise demonstrated a well-founded fear of future persecution. (BIA Opinion at 1.) The BIA further held that Chen had failed to establish a claim for relief under the CAT.
Chen timely petitioned this Court to review the BIA’s decision. He also filed a *564motion for a stay of removal, which we denied because he did not show a likelihood of success on the merits of his petition. The Government has since moved to summarily affirm the BIA’s decision.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s denial of asylum, withholding of removal, and CAT relief for substantial evidence.1 See Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir.2003); Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003). Under this deferential standard of review, we must uphold the BIA’s findings “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
As noted by the BIA, the spouses of individuals subjected to coercive population control policies are not automatically eligible for asylum or withholding of removal. See Lin-Zheng v. Att’y Gen. of the U.S., 557 F.3d 147, 148-49 (3d Cir.2009) (en banc). Although spouses remain eligible for such relief if they can establish their own persecution — for instance, by showing that they have been persecuted because they have resisted a coercive population control policy, id. at 157 — the evidence in this case does not compel such a finding. Nor does the record here suggest, let alone compel, a finding that Chen would be persecuted for having left China illegally.2 His CAT claims lack merit as well.
Because Chen’s petition for review does not raise a substantial question, we will grant the Government’s motion for summary affirmance and deny Chen’s petition. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
. Although the Government appears to suggest otherwise, Chen has not waived his right to challenge the denial of his claim concerning his wife's forced IUD insertion and abortion.
. The U.S. State Department's 2007 Profile of Asylum Claims and Country Conditions ("Profile”), which is part of the record in this case, states that:
The Chinese government accepts the repatriation of citizens who have entered other countries or territories illegally. In the past several years, hundreds of Chinese illegal immigrants have been returned from the United States, and U.S. Embassy officials have been in contact with scores of them. In most cases, returnees are detained long enough once reaching China for relatives to arrange their travel home. Fines are rare. U.S. officials in China have not confirmed any cases of abuse of persons returned to China from the United States for illegal entry.
(Profile at 31.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475631/ | OPINION
SLOVITER, Circuit Judge.
Corey Roane, who pled guilty to being a felon-in-possession of a firearm, appeals the District Court’s denial of his motion to suppress a gun found on him during a pat down search that-was made pursuant to a valid Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
I.
At about 3 p.m. on August 1, 2007, the Wilmington Police Department radio dispatch broadcast a call about a robbery at the Temptations Ice Cream Parlor in the Trolley Square area of Wilmington, Delaware. The call described the suspect as “a black male on a ten-speed bike, last seen wearing a black t-shirt and a black doo-rag and shorts ... [l]ast seen headed northbound on DuPont.” SuppApp. at 16. Officer Murdock responded to that call and saw Roane, a black male who was wearing a black doo-rag, pants, and a dark t-shirt, and who was riding a bicycle northbound on DuPont about two blocks from Temptations.
Murdock stopped Roane, then placed his hand on Roane’s wrist and guided Roane to his police ear where he frisked Roane and found a gun in Roane’s waistband. Murdock removed the weapon, placed Roane in handcuffs, then drove Roane to Temptations, where the robbery victim concluded that Roane was not the robber. Roane was later indicted for one count of felon-in-possession of a firearm. See 18 U.S.C. § 922(g)(1).
Roane moved to suppress the gun as the fruit of a seizure and search that violated the Fourth Amendment, U.S. CONST, amend. IV, on the ground that it was unreasonable for the police to stop and search him. After evidentiary hearings, the District Court denied the motion, holding that the stop was justified because Roane “met almost all of the descriptions provided by the robbery victim,” App. at 14, and that the search was reasonable because Murdock could “infer that some type of force was used to effect the robbery,” App. at 16. Roane then pled guilty, *566preserving his right to appeal the District Court’s decision not to suppress the gun.1
II.
“We review the denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the district court’s properly found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir.2006).
Roane appeals only the District Court’s holding that the search was justified. In United States v. Edwards, we articulated the constitutional standard for whether a search conducted pursuant to a lawful stop violates the Constitution:
In Terry, the Supreme Court held that a police officer, during the course of a Terry stop, may conduct a “reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual.... ” Id. at 27[ 88 S.Ct. 1868]. The test is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. (citations omitted). Finally, in determining whether the officer acted reasonably under the circumstances, “due weight must be given, not to his inchoate and unpar-ticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. (citations omitted).
53 F.3d 616, 618 (3d Cir.1995).
Roane argues that the District Court clearly erred by inferring that Murdock believed that he “conducted the pat down to ensure officer safety as Murdock did not know whether a weapon was used to commit the robbery at Temptations.” App. at 12. More specifically, Roane asserts that “a complete review of the transcripts of the evidentiary hearings show[s] that Mur-dock never stated that he performed the pat-down because he did not know if a weapon was used.” Appellant’s Reply Br. at 2-3.
The inference drawn by the District Court, however, is well supported by the record. The dispatch did not specify whether the robber had a weapon, and Murdock testified that he patted Roane down to protect his safety and that of others. More importantly, this and Roane’s other arguments concerning Murdock’s subjective reasons for frisking Roane are misplaced: the Supreme Court has made clear that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action.” Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (internal quotations omitted).
The information available to Murdock made the search of Roane objectively reasonable. Roane closely matched the description of a man who committed a robbery in broad daylight, a crime the very nature of which suggests that a weapon was involved. Despite Roane’s protestations to the contrary, no further investigation was necessary to justify a protective search, and, given the other circumstances, the facts that Roane did not make any “furtive movements” or “appear nervous” when he was stopped are largely irrelevant. Supp.App. at 58-59.
Roane suggests that because the dispatcher did not state whether or not the robber had a weapon, a reasonable officer would not have inferred that the robber *567was armed. Without affirmative information that the robber did not possess a weapon, Murdock acted reasonably to protect himself.
We look to our decision in Edwards, which involved a suspected credit card fraud at a bank. 53 F.3d at 617. The radio dispatch about the crime apparently did not mention whether the suspects were armed. See id. at 618. Despite this, the panel held that there was “no error in the district court’s conclusion that [the officer who ‘frisked’ the defendant] had reason to believe that he could be facing armed and dangerous felons ... [because the] fraud occurred at a bank in broad daylight [which] could lead one to believe that the perpetrators might have armed themselves to facilitate their escape if confronted.” Id. The court noted that even though “the radio bulletin did not describe [the crime] as a bank robbery, it [was still] reasonable to conclude that the suspects might use force and be armed.” Id.; see also Terry, 392 U.S. at 27, 88 S.Ct. 1868 (“a daylight robbery ... it is reasonable to assume, would be likely to involve the use of weapons”). Roane’s attempts to distinguish Edwards are unpersuasive.
III.
For the reasons set out above, we will affirm the District Court’s ruling.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and this court has jurisdiction under 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475634/ | OPINION
SLOVITER, Circuit Judge.
Appellant Malverse Giles pled guilty, pursuant to a written plea agreement, to distribution and possession with intent to distribute cocaine and 50 grams or more of cocaine base. Giles’ counsel filed an An-ders brief and Giles, as permitted in An-ders cases, also filed a pro se brief.
Under Anders, if, after review of the district court record and a conscientious investigation, counsel is convinced that the appeal presents no issue of arguable merit, counsel may properly ask to withdraw while filing a brief referring to anything in the record that might arguably support the appeal. See Anders v. California, 386 U.S. 738, 741-42, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In an Anders case, appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000).
In order to fulfill our obligation to decide whether to accept counsel’s Anders brief and permit counsel to withdraw, we review not only the brief itself but the record on appeal, in particular the colloquy held by the District Court to determine whether the guilty plea was entered knowingly and voluntarily, and whether the defendant’s waiver of his right to indictment was knowing and voluntary.
Neither the Anders brief nor Giles’ pro se brief challenges the guilty plea or the conviction. Instead, Giles focuses his challenge to the sentence. We therefore turn to the calculation of Giles’ Guideline sentence. Because of the amount of drugs, the offense had a base level of 38 plus two levels for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). The presentence investigation report (PSR) categorized Giles as a career offender and recommended that Giles had a Sentencing Guideline Range of 360 months to life. At the sentencing hearing, the parties stipulated and the Court accepted that the drug weight was appropriate but that the firearm enhancement did not apply. Counsel for Giles objected that his criminal history was over-represented, focusing particularly on the age of his prior conviction. The District Court adopted the PSR but agreed with Giles that his criminal history was overstated and reduced Giles’ criminal history from VI to V and declined to assess him as a career offender. The Court also granted the Government’s motion for a two-level reduction pursuant to U.S.S.G. § 5K1.1 for acceptance of responsibility.
*569Giles argued for a sentence below the Guideline range but the District Court found that Giles’ Sentencing Guideline range was 235 to 293 months of imprisonment, and sentenced him to 235 months incarceration, a sentence at the bottom of the Guideline range and a five-year period of supervised release.
Giles argued in the District Court and argues here that his co-conspirators were sentenced to lower jail time, with co-defendant Redd sentenced to 108 months and codefendant Thomas sentenced to 139 months. However, it is evident that their criminal histories were far different from that of Giles. Redd had no prior criminal record and therefore was in a criminal history category of I and Thomas had a criminal history category of III but cooperated with the Government from the day of his arrest and even to the sentencing proceeding against Giles. In light of the significant difference in their prior criminal record, the District Court neither erred nor abused its discretion in sentencing Giles to a longer term of imprisonment. Nothing in § 3553 precludes the Court from taking the differences between defendants into consideration. The District Court explained its sentence and application of § 3553 on the record.
Much of Giles’ pro se brief is really directed to claims of ineffective assistance of counsel. Such claims cannot be heard on direct appeal but must be raised, if at all, on a collateral attack. Finding nothing to suggest that there was an abuse of discretion or that the District Court erred, for the reasons set forth we -will affirm the judgment of conviction and sentence and grant counsel’s motion to withdraw. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471172/ | MEMORANDUM **
Defendant Jose Peres-Peres appeals from a conviction under 8 U.S.C. § 1326 for being in the United States in July 2007 without the consent of the Secretary of the Department of Homeland Security,1 after having been previously deported in 1991. Peres-Peres argues that he should have been allowed to present a defense under 8 U.S.C. § 1326(a)(2)(B) that he was not required to obtain such consent.
The government asks us to affirm the district court’s pre-trial denial of the defense on the ground that it is only available to those who were previously “denied admission and removed,” 8 U.S.C. § 1326(a)(2)(B), not to those who were deported or removed from within the country. See United States v. Gutierrez-Alba, 128 F.3d 1324, 1327-28 (9th Cir.1997) (holding, under the earlier wording of the statute, that an alien who was “arrested and deported” rather than “excluded and deported” cannot assert a defense under § 1326(a)(2)(B)). The district court erred in barring the defense because the government failed to submit any evidence at that stage of the proceedings establishing that Peres-Peres was previously deported from within the country rather than “denied admission and removed.”2
Nevertheless, the district court’s error was harmless because the evidence during trial showed unequivocally that Peres-Peres was arrested and deported rather than “denied admission and removed,” and because he never contended otherwise. We expect the government to offer evidence of arrest and deportation in the future, however, before seeking to preclude defendants from asserting their § 1326(a)(2)(B) defense.
Peres-Peres waived his argument that he was entitled to a jury instruction on the lesser-included offense for illegal entry, 8 U.S.C. § 1325, by failing to argue the issue adequately in the opening brief. See United States v. Alonso, 48 F.3d 1536, 1544 (9th Cir.1995).
For these 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.
. The relevant statutory sections refer to the Attorney General, but the Homeland Security Act of 2002 transferred most immigration functions, except the Executive Office of Immigration Review, from the Department of Justice to the Department of Homeland Security. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n. 2 (9th Cir.2003).
. In fact, the grand jury charged Peres-Peres with having been "previously denied admission, excluded, deported, and removed from the United States (emphasis added), suggesting that he had been “denied admission and removed," 8 U.S.C. § 1326(a)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471174/ | MEMORANDUM **
We lack jurisdiction over Masengi’s asylum claim because it was untimely filed. See Husyev v. Mukasey, 528 F.3d 1172, 1178 (9th Cir.2008).
Masengi is not eligible for withholding of removal under 8 U.S.C. § 1231(b)(3) or the Convention Against Torture, because substantial evidence in the record supports the BIA’s determination that Masengi does not face a clear probability of either persecution on account of his race and religion or torture, see Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000), even taking into account his membership in disfavored reli*300gious and racial groups, see Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir.2009). There is no evidence of IJ bias with respect to Masengi’s contention that the IJ had a pre-conceived notion of conditions in Indonesia such that the IJ believed that no individual from that country could establish a grounds for relief. Likewise, there is no basis for Masengi’s claim that the IJ’s decision was based on speculation rather than substantial evidence in the record.
Masengi waived any legal argument regarding the propriety of the IJ’s exclusion of his expert witness by failing to develop a coherent legal argument in his brief to this court regarding why the IJ erred. See Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir.2001).
PETITION 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/8471175/ | MEMORANDUM *
William Dalton appeals the district court’s grant of summary judgment dismissing his 42 U.S.C. § 1983 and pendent state law claims against his former employer, the Washington State Department of Corrections (“DOC”), and his former supervisors, Joseph Lehman (former Secretary of the DOC), Alice Payne (former Prison Superintendent), and Jane Robinson (former Health Care Manager). Dalton alleges that he was terminated from employment as a nurse at the McNeil Island correctional facility (the “Prison”) for statements he made about conditions at the Prison’s health care facility. We affirm in part, reverse in part, and remand.
1. Dalton’s May 2001 testimony to the risk management task force and his related letter to various public officials are undisputedly protected speech. Whether that speech was a “substantial or motivating factor” is a question of fact, Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir.2009), that is typically left to the trier of fact, Allen v. Scribner, 812 F.2d 426, 436 (9th Cir.1987) (observing that the issue of motivation generally presents a jury question), amended, 828 F.2d 1445 (9th Cir.1987). We have previously held “that circumstantial evidence created a genuine issue of material fact on the question of retaliatory motive” where the plaintiff produces evidence both that (1) his employer knew of his speech and (2) there is “proximity in time between the protected action and the allegedly retaliatory employment decision.” See Keyser v. Sacramento City Unified School Dist., 265 F.3d 741, 751 (9th Cir.2001) (citing Schwartzman v. Va*303lenzuela, 846 F.2d 1209, 1212 (9th Cir.1988)).
Here, Dalton presented evidence that Lehman, who gave final approval of Dalton’s termination, was aware of Dalton’s testimony. Although Payne and Robinson averred no knowledge of Dalton’s testimony and letter, Lehman stated that he may have called Payne regarding Dalton’s testimony. Dalton also presented evidence that he suffered adverse employment decisions within approximately one year of his testimony. Because Lehman knew of Dalton’s testimony and may have communicated that knowledge to Payne, and because Dalton was dismissed within a year of that testimony, an inference of retaliation might reasonably be drawn. See, e.g., Allen v. Iranon, 288 F.3d 1070, 1078 (9th Cir.2002) (“Although an inference from temporal proximity would have been stronger had the gap in time been smaller, an eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.”).
Viewing this circumstantial evidence in the light most favorable to Dalton, the non-moving party, Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.2004), we conclude that there are genuine issues of material fact on the question of whether Dalton’s testimony before the risk management task force was a substantial motivating factor in Lehman and Payne’s decision to terminate him. However, Dalton has presented no evidence that Robinson knew of Dalton’s testimony before the risk management task force; therefore we affirm the district court’s dismissal of this claim as against Robinson.
2. The district court correctly concluded that Dalton’s emails to his coworkers and immediate supervisors regarding equipment and emergency protocols are not protected speech, because they arose from and are directly related to his performance of official duties as a nurse at the Prison. S.ee Garcetti v. Ceballos, 547 U.S. 410, 421-22, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
3. Dalton has not met his burden of showing that his future testimony in the Montgomery lawsuit was a substantial or motivating factor in his termination. See Eng, 552 F.3d at 1071. Dalton was terminated before he testified in the lawsuit and before he was even identified as a potential witness by the plaintiff in that case. The record does not show that Robinson actually knew that Dalton was going to be a witness. Dalton has also not shown that Lehman or Payne knew that Dalton would be a witness in the lawsuit. Even if we assume that Robinson did know, Dalton failed to provide more than “mere evidence” that Robinson was aware of his future testimony, which is required in order to establish a genuine material dispute as to whether his potential testimony was a substantial motivating factor for his termination. See Keyser, 265 F.3d at 751. Third, Dalton has failed to show why his testimony in a lawsuit (that did not involve Lehman, Payne, or Robinson) would lead them to retaliate against him.
4. Under Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Appellees may be able to show that Dalton would have been terminated even absent his testimony before the risk management task force. The Appellees have presented substantial justifications for Dalton’s termination (Dalton’s failure to properly assess the cardiac patient and provide informed consent, giving an inmate a urinal from which to drink, and fading to call the on-call provider to get pain medication for an acute dental emergency). *304Whether the Appellees’ justifications are legitimate or merely pretext is a factual question for the jury. See Eng, 552 F.3d at 1072 (citing Wagle v. Murray, 560 F.2d 401, 403 (9th Cir.1977) (per curiam) (“Mt. Healthy indicates the ‘trier-of-fact’ should determine whether the firing would have occurred without the protected conduct.”)). Therefore, a genuine issue of material fact remains as to whether Dalton’s testimony before the risk management task force was the “but for” cause of his termination.
5. The district court did not err in dismissing Dalton’s due process claim. The record is undisputed that Dalton received written notice, was afforded both a pre-termination hearing and a follow-up meeting (in which he was represented by the Union), was confronted with the evidence against him, and was allowed to tell his story. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
Dalton has presented no evidence to support his claim that Payne, acting as a quasi-judicial fact finder in an administrative proceeding, was biased. In any event, this claim is not timely. See, e.g., Skokomish Indian Tribe v. U.S., 410 F.3d 506, 519 (9th Cir.2005) (en banc) (“A motion for recusal must be made with reasonable promptness after the ground for such a motion is ascertained.”) (internal citations and quotations omitted). Any bias would have been plainly evident at the time of the hearing, yet neither Dalton nor his Union representative objected, and Dalton has not shown any justification for his delay in raising this claim.
6. The district court properly dismissed Dalton’s common law claims. The personnel reports and communications from Payne (that are the basis of Dalton’s common law claims) are privileged under Washington state law. See Wash. Rev. Code § 18.130.070(3); Patterson v. Supt. of Pub. Instruction, 76 Wash.App. 666, 887 P.2d 411, 415 (1994). Further, nothing in Payne’s statements is extreme, outrageous, or a breach of any duty identified by Dalton.
7. Dalton’s claims that the district court considered inadmissible evidence are without merit. Although the district court did not rule on Dalton’s motion to strike various hearsay assertions, there is nothing in this record to indicate that the district court relied on these assertions when ruling on the merits of the motion for summary judgment.
8. We remand the issue of qualified immunity, “which should be addressed by the district court in the first instance.” Swift v. California, 384 F.3d 1184, 1193 (9th Cir.2004).
Each party to bear their own costs on appeal.
AFFIRMED in part, REVERSED 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/8471178/ | MARSHALL,* District Judge.
MEMORANDUM **
In these consolidated appeals, Appellants Terry Collingsworth and Paul L. Hoffman appeal the district court’s order imposing sanctions under Federal Rule of Civil Procedure 11. In addition, Hoffman appeals the district court’s denial of his motion for reconsideration of the sanctions order. We have jurisdiction over the appeals pursuant to 28 U.S.C. § 1291. We review the district court’s Rule 11 sanctions order for abuse of discretion, and we vacate and remand so that the district court can reevaluate the imposition of sanctions in light of this decision. Holgate v. Baldwin, 425 F.3d 671, 675 (9th Cir.2005). We review the district court’s denial of a motion for reconsideration for abuse of discretion, and we reverse. Smith v. Pac. Props. and Dev. Corp., 358 F.3d 1097, 1100 (9th Cir.2004).
The parties are familiar with the facts of this case, which are extensive. Therefore, we do not repeat them here, except as necessary to explain our decision. However, before we reach the merits of the appeals, we explain the basis of our jurisdiction to hear Collingsworth’s appeal.
I. JURISDICTION
The district court issued its order imposing Rule 11 sanctions on October 16, 2007, 2007 WL 3036093. Collingsworth filed a Notice of Appeal of the district court’s Rule 11 order on November 15, 2007. Although the district court entered final judgment on that same date, Collingsworth did not amend his Notice of Appeal to appeal from the subsequently entered judgment.1
Appellate jurisdiction is ordinarily limited to appeals from “final decisions of the district courts.” 28 U.S.C. § 1291. Under the collateral order doctrine, the Supreme Court has allowed jurisdiction over certain types of collateral orders that do not end the litigation. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under this doctrine, we have held that an order imposing Rule 11 sanctions upon counsel, a nonparty, is final and appealable by the attorney sanctioned upon imposition of the sanction. Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1338-39 (9th Cir.1995) (citations omitted). However, in Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 210, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999), the Supreme Court “effectively overruled earlier Ninth Circuit decisions allowing immediate appeal by attorneys from orders imposing sanctions” when the Court held that a sanctions order under Rule 37(a) against an attorney was not “final” for purposes of § 1291. Stanley v. Woodford, 449 F.3d 1060, 1063 (9th Cir.2006).
In Stanley, we extended the Supreme Court’s decision in Cunningham to appeals from sanctions imposed against attorneys under 28 U.S.C. § 1927 and the court’s inherent powers. Id. at 1065. In extending the ruling of Cunningham, the Stanley court reasoned that the “policies undergirding Rule 37(a) sanctions are not relevantly different from those justifying *307sanctions under § 1927 or a court’s inherent powers.” Id. at 1064. Moreover, in Stanley, we recognized that we had “already expanded Cunningham beyond Rule 37(a)” to prohibit interlocutory appeals of orders imposing Rule 16(f) sanctions and granting attorney’s fees as a condition of substituting counsel. Id. (discussing Cato v. Fresno City, 220 F.3d 1073, 1074 (9th Cir.2000) and Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 897 (9th Cir.2001)).
The rationale of Cunningham and Stanley equally apply here. Like sanctions imposed under Rule 37(a), § 1927, and the court’s inherent power, Rule 11 sanctions “invoke[ ] concerns regarding finality, avoiding piecemeal appeals, and availability of effective appellate review.” See Stanley, 449 F.3d at 1064. (citations omitted). Accordingly, Collingsworth’s appeal is not an appeal from a final order, but, rather, is an interlocutory appeal.
Despite the foregoing, we have jurisdiction over Collingsworth’s appeal pursuant to Federal Rule of Appellate Procedure 4(a)(2) and the “subsequent events” doctrine. Rule 4(a)(2) provides that “[a] notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.” The Supreme Court has held that Rule 4(a)(2) permits a notice of appeal from a non-final decision to operate as a notice of appeal from the final judgment “only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.” FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991) (emphasis in original). In so holding, the FirsTier court stated in dicta that Rule 4(a)(2) does not permit “a notice of appeal from a clearly interlocutory decision — such as a discovery ruling or a sanction order under Rule 11 ... — -to serve as a notice of appeal from the final judgment.” Id.
In cases decided after FirsTier, we have held that the subsequent events doctrine can cure a prematurely filed appeal of a clearly interlocutory order. See, e.g., Special Invs. Inc. v. Aero Air Inc., 360 F.3d 989, 993 (9th Cir.2004) (“[A] prematurely filed notice of appeal can be cured if the rest of the claims are disposed of in a subsequent final decision terminating the litigation.”); Eastport Assocs. v. City of L.A. (In re Eastport Assocs.), 936 F.2d 1071, 1075 (9th Cir.1991) (“[T]he rule in this circuit [is] that once a final judgment is entered, an appeal from an order that otherwise would have been interlocutory is then appealable.”)
We find Cato v. Fresno City, 220 F.3d 1073 (9th Cir.2000) (per curiam) to be instructive. In Cato, we exercised jurisdiction over an appeal of a Rule 16(f) sanctions order that was filed prior to the entry of judgment. See Cato, 220 F.3d at 1074-75. In relying on the subsequent events doctrine, the court stated: “We take a pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule.” Id. (internal quotations omitted).
Contrary to Appellees’ arguments, FirsTier is not applicable to this case. Here, Collingsworth has filed an appeal of an interlocutory order. He is not, as the Supreme Court cautioned in FirsTier, attempting to use his notice of appeal of the sanctions order to serve as a notice of appeal of the final judgment dismissing the claims of three Plaintiffs. Cf. FirsTier, 498 U.S. at 276, 111 S.Ct. 648. Rather, he is appealing the sanctions order itself and FirsTier does not bar the application of the “subsequent events” doctrine to his appeal.
*308The circumstances surrounding Collingsworth’s Notice of Appeal support this court’s exercise of jurisdiction pursuant to the subsequent events doctrine. Collingsworth filed his Notice of Appeal of the sanctions order on the same day the district court entered judgment. As a result, any defect in his appeal was cured almost instantly. Moreover, by the time Collingsworth appealed, the district court had already granted summary judgment in favor of Defendants and dismissed the three Plaintiffs’ claims with prejudice. Thus, at the time the district court issued its sanctions order, all that was left to do with respect to the dismissed Plaintiffs’ claims was the ministerial task of entering judgment. Accordingly, in keeping with the “pragmatic approach” adopted by this court, we find that we have jurisdiction to hear Collingsworth’s appeal.
II. SANCTIONS ORDER
The sanctions order in this case followed the district court’s order dismissing the claims of three Plaintiffs with prejudice after Defendants-Appellees alerted the district court that the Plaintiffs in question had fabricated their cancer claims. Shortly after the district court dismissed the claims, on August 9, 2007, Defendants moved for sanctions pursuant to the district court’s inherent authority. Although Defendants asserted that Plaintiffs’ counsel had violated their Rule 11 duties, Defendants expressly based their request for attorneys’ fees on the district court’s inherent power.
On September 10, 2007, without ruling on Defendants’ motion, the district court issued an order to show cause stating:
Pursuant to FRCP 11(c)(1)(B),2 Cristo-bal Bonifaz and all plaintiffs’ counsel and their law firms (namely, Paul L. Hoffman and Terry Collingsworth) who signed any complaint or amended complaint herein are ordered to show cause why each counsel should not be sanctioned for the conduct set forth in defendants’ pending FRCP 11 motion.... Said plaintiffs’ counsel shall also respond to the alternate ground of sanction based on the inherent power of the Court.
On October 16, 2007, the district court sanctioned attorneys Bonifaz,3 Collings-worth and Hoffman pursuant to Rule 11(c)(1)(B). In sanctioning the attorneys, the district court found that the cancer and cancer-related claims made on behalf of the Plaintiffs in question “were baseless and made without reasonable and competent inquiry.”
In United Nat’l Ins. Co. v. R & D Latex Corp., we held that sua sponte Rule 11 sanctions “will ordinarily be imposed only in situations that are akin to a contempt of court.” 242 F.3d 1102, 1116 (9th Cir.2001) (quoting Barber v. Miller, 146 F.3d 707, 711 (9th Cir.1998)) (emphasis in original). Therefore, prior to imposing court-initiated sanctions, the district court is required to determine whether counsel’s conduct is “akin to contempt.” See id. at 1118 (reversing district court’s sua sponte sanctions order where counsel’s conduct was *309“in neither purpose nor substance ‘akin to contempt.’ ”)
Here, the district court applied a “reasonableness” standard, which is the appropriate standard for party-initiated, but not court-initiated, Rule 11 sanctions. Therefore, the district court abused its discretion in failing to apply the “akin to contempt” standard established by this court for court-initiated Rule 11 sanctions, and we remand so that the district court may consider whether Collingsworth’s and Hoffman’s conduct was akin to contempt. See id. at 1116.
III. MOTION FOR RECONSIDERATION
“[A] motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999). As discussed above, district courts are required to apply the “akin to contempt” standard prior to imposing Rule 11 sanctions sua sponte. In denying Hoffman’s motion for reconsideration, the district court did not consider Hoffman’s arguments that an “akin to contempt” standard applied in this case. Accordingly, we find that the district court abused its discretion in denying the motion because its denial was based upon a “clearly erroneous” view of the law. McDowell v. Calderon, 197 F.3d 1253, 1255 & n. 4 (9th Cir.1999) (per curiam).
IV. CONCLUSION
We close with the following guidance for the district court with respect to the nature of the sanctions award. Under Rule 11, a district court is not permitted to impose Rule 11 sanctions payable to a party (e.g., in the form of reasonable attorneys’ fees) on the basis of a sua sponte show cause order. See Fed.R.CivP. 11(c)(4) (“The sanction may include non-monetary directives; an order to pay a penalty into court; or, if imposed on motion ..., an order directing payment to the movant of part or all of the reasonable attorney’s fees ....”) (emphasis added); Barber, 146 F.3d at 711 (noting that “a monetary sanction imposed after a court-initiated show cause order [must] be limited to a penalty payable to the court”) (quoting Fed.R.Civ.P. 11 advisory committee’s note). Accordingly, any Rule 11 monetary sanction imposed pursuant to the court’s initiative must be in the form of a penalty payable to the court. See Barber, 146 F.3d at 711.
VACATED IN PART, REVERSED IN PART, AND REMANDED.
The Honorable Consuelo B. Marshall, United States District Judge for the Central District of California, sitting by designation.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. In contrast, although Hoffman too filed a Notice of Appeal of the Rule 11 order, he amended his initial notice of appeal after the district court entered judgment, thereby avoiding any jurisdictional issue.
. Rule 11 was amended in 2007 “as a part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules.” Fed.R.Civ.P. 11 advisory committee’s note. As a result of the amendments, former Rule 11(c)(1)(B) is reflected in current Rule 11(c)(3) and former Rule 11(c)(1)(A) is reflected in current Rule 11(c)(2). Except in the "Conclusion,” we reference the pre-2007 version of Rule 11, which was in effect at the time the district court entered its order.
. Bonifaz did not appeal the district court's sanctions order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471180/ | MEMORANDUM **
Richard E. George appeals pro se from the district court’s summary judgment in his action challenging collection of his 1997-1999 income taxes. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Trantina v. United States, 512 F.3d 567, 570 n. 2 (9th Cir.2008), and we affirm.
*311The district court properly denied George’s request for entry of default judgment against the federal defendants because the mere failure to answer a complaint within the statutory deadline is not a sufficient ground for entry of default judgment against the government. See Fed. R.Civ.P. 55(d) (explaining that default judgment against the government and its officers is proper “only if the claimant establishes a claim or right to relief by evidence that satisfies the court”); Moore v. United Kingdom, 384 F.3d 1079, 1090 n. 16 (9th Cir.2004) (noting that Rule 55(d) requires “district courts to reach the merits of a plaintiffs claim before entering a default judgment against the government”).
The district court properly granted summary judgment to federal defendants. Contrary to George’s contention, the entry of summary judgment did not violate his right to a jury trial. See Johnson v. Neilson (In re Slatkin), 525 F.3d 805, 811 (9th Cir.2008) (“[A] summary judgment proceeding does not deprive the losing party of its Seventh Amendment right to a jury trial.”); see also Fed.R.Civ.P. 56(c).
The district court properly granted the state defendants’ motion to dismiss for lack of subject matter jurisdiction where the state defendants never sought removal and never subjected themselves to the jurisdiction of the district court after the case was removed by the federal defendants. See Ely Valley Mines, Inc. v. Hartford Acc. & Indem. Co., 644 F.2d 1310, 1314-15 (9th Cir.1981) (explaining that under 28 U.S.C. § 1442, a federal defendant can remove a case to federal court without other defendants joining in the petition).
We do not consider George’s newly raised argument that defendants conspired against him. See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1053 (9th Cir.2007) (holding that arguments raised for the first time on appeal are deemed abandoned absent certain narrow exceptions).
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/8471182/ | MEMORANDUM **
Nevada prisoner Frank Matylinsky (“Matylinsky”) appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He was convicted in Nevada State District Court of the murder of his wife and manslaughter of his unborn child and was sentenced to life without the possibility of parole.
I
After litigating both direct and habeas appeals in the Nevada state courts, Maty-linsky challenged his conviction in a federal habeas petition before the United States District Court for the District of Nevada.1 His original federal habeas petition was dismissed without prejudice for failure to exhaust claims in state court. He returned to state district court to exhaust those claims. However, the state court ruled that many of his unexhausted claims could have been raised in a previous petition, and therefore these claims were pro*313cedurally barred under Nevada law. See Bejarano v. State, 122 Nev. 1066, 146 P.3d 265, 269 (2006) (citing Nev.Rev.Stat. § 34.810(l)(b)). The Nevada Supreme Court agreed.
Matylinsky then returned to federal district court, which subsequently denied him relief. The federal district court first dismissed those claims deemed procedurally defaulted by the state courts as having been decided on adequate and independent state grounds. It also found that many other claims were never exhausted in the state courts. It therefore found that it lacked jurisdiction to review all these claims and dismissed them with prejudice. It reached the merits of four remaining issues including a sufficiency of the evidence claim and three ineffective assistance of counsel claims. However, it ultimately denied him relief on any of these claims.
Matylinsky sought a Certificate of Ap-pealability (“COA”) on the following issues: (1) those claims procedurally barred due to default in the state courts or failure to exhaust; (2) sufficiency of the evidence to support his conviction; (3) ineffective assistance of trial counsel; (4) ineffective assistance of appellate counsel; and (5) ineffective assistance of post-conviction (or habeas) counsel. We granted the COA for both claims (1) and (3), but denied the COA for the three remaining issues. Ma-tylinsky then filed timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
II
Federal courts will not review a question of federal law decided by a state court if the state court explicitly invokes a state procedural bar as the basis for its decision, and if that procedural bar constitutes an independent and adequate ground. Hill v. Roe, 321 F.3d 787, 789 (9th Cir.2003). “In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner’s purported default.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir.2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir.1994)) (emphasis omitted); see also Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989).
In Bargas v. Burns, 179 F.3d 1207, 1212 (9th Cir.1999), we examined whether Nevada’s “strict rule” requiring a petitioner to “raise all claims in his first habeas petition in order to avoid the penalty of procedural default” constituted an adequate and independent state ground. We held that it did. “Nevada case law has set forth a clear and regularly applied rule that a petitioner must pursue all avenues for relief if he wishes to preserve his claims. Thus, a petitioner ... must raise all claims in his first petition for post-conviction relief to the state trial court.” Id. (citing Johnson v. Warden, Nev. State Prison, 89 Nev. 476, 515 P.2d 63, 64 (1973)). This rule was “firmly established” and “regularly followed” at the time Matylinsky filed his first state habeas petition in January 1986. Id. at 1209,1212 (finding the rule established for a petitioner whose first petition was filed in December 1983); see also Dromiack v. Warden, Nev. State Prison, 97 Nev. 348, 630 P.2d 751, 752 (1981) (per curiam). The state court’s finding of procedural default was an adequate and independent state ground for denying those defaulted claims.2
*314Matylinsky claims that we should excuse the procedural default. As we said in Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir.2005), we cannot consider a “claim that is defaulted in state court pursuant to an adequate and independent procedural bar ... unless the petitioner demonstrates cause and prejudice for the default, or shows that a fundamental miscarriage of justice would result if the federal court refused to consider the claim.” Matylinsky has failed to establish evidence of cause for his default in state court. In addition, he has presented no argument regarding how a denial would result in a fundamental miscarriage of justice. Therefore, we affirm the dismissal of his claims which were deemed procedurally defaulted by the state court.
Ill
A state prisoner must also exhaust all constitutional claims in state court before a federal court can consider them. 28 U.S.C. § 2254(b)(1)(A), (c). Under § 2254(c), exhaustion typically requires that “state prisoners ... give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir.2003) (en banc). A petitioner must make the state courts aware of his intent to raise issues of federal law; merely pointing to a similar state law claim is “insufficient to exhaust.” Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Peterson, 319 F.3d at 1159-60.
The district court found that Matylinsky had failed to exhaust Grounds 2, 8, 9, 10, 15, and 18(1, K, L, Q, Y). With the exception of Ground 18(Q), we agree.3 Matylin-sky’s claims are either altogether absent from his state appeals or too attenuated from a claim raised in the state courts to be considered exhausted.
IV
Matylinsky filed a motion to expand the COA to include three additional claims: (1) whether substantial evidence supports his first degree murder conviction (Ground 14); (2) whether his appellate counsel was ineffective (Ground 19); and (3) whether his post-conviction counsel was ineffective (Ground 20). That motion is denied. See Hiivala v. Wood, 195 F.3d 1098, 1103-05 (9th Cir.1999) (per curiam); 9th Cir. R. 22-1 (e).
V
The district court order is AFFIRMED. The motion to expand the Certificate of Appealability is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3.
. In a concurrently filed opinion, we consi der and reject Matylinsky's claim that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Matylinsky v. Budge, 577 F.3d 1083 (9th Cir.2009). The facts of the case are stated there; we need not repeat them here.
. This refers to Grounds 1, 3, 4, 5, 6, 11, 12, 13, 16(A-D), 17, 18(B-C, F-G, J, O, BB-EE), and 21, raised in Matylinsky's initial third post-conviction petition, and Grounds 7 and 18(D, P, T), raised in his supplemental brief to his third post-conviction petition, all of which *314were dismissed by the Nevada Supreme Court.
. Ground 18(Q) is one of Matylinsky's myriad ineffectiveness of trial counsel claims. The merits of this claim are discussed in the corresponding published opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475633/ | OPINION
SLOVITER, Circuit Judge.
Appellant Malverse Giles pled guilty, pursuant to a written plea agreement, to distribution and possession with intent to distribute cocaine and 50 grams or more of cocaine base. Giles’ counsel filed an An-ders brief and Giles, as permitted in An-ders cases, also filed a pro se brief.
Under Anders, if, after review of the district court record and a conscientious investigation, counsel is convinced that the appeal presents no issue of arguable merit, counsel may properly ask to withdraw while filing a brief referring to anything in the record that might arguably support the appeal. See Anders v. California, 386 U.S. 738, 741-42, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In an Anders case, appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000).
In order to fulfill our obligation to decide whether to accept counsel’s Anders brief and permit counsel to withdraw, we review not only the brief itself but the record on appeal, in particular the colloquy held by the District Court to determine whether the guilty plea was entered knowingly and voluntarily, and whether the defendant’s waiver of his right to indictment was knowing and voluntary.
Neither the Anders brief nor Giles’ pro se brief challenges the guilty plea or the conviction. Instead, Giles focuses his challenge to the sentence. We therefore turn to the calculation of Giles’ Guideline sentence. Because of the amount of drugs, the offense had a base level of 38 plus two levels for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). The presentence investigation report (PSR) categorized Giles as a career offender and recommended that Giles had a Sentencing Guideline Range of 360 months to life. At the sentencing hearing, the parties stipulated and the Court accepted that the drug weight was appropriate but that the firearm enhancement did not apply. Counsel for Giles objected that his criminal history was over-represented, focusing particularly on the age of his prior conviction. The District Court adopted the PSR but agreed with Giles that his criminal history was overstated and reduced Giles’ criminal history from VI to V and declined to assess him as a career offender. The Court also granted the Government’s motion for a two-level reduction pursuant to U.S.S.G. § 5K1.1 for acceptance of responsibility.
*569Giles argued for a sentence below the Guideline range but the District Court found that Giles’ Sentencing Guideline range was 235 to 293 months of imprisonment, and sentenced him to 235 months incarceration, a sentence at the bottom of the Guideline range and a five-year period of supervised release.
Giles argued in the District Court and argues here that his co-conspirators were sentenced to lower jail time, with co-defendant Redd sentenced to 108 months and codefendant Thomas sentenced to 139 months. However, it is evident that their criminal histories were far different from that of Giles. Redd had no prior criminal record and therefore was in a criminal history category of I and Thomas had a criminal history category of III but cooperated with the Government from the day of his arrest and even to the sentencing proceeding against Giles. In light of the significant difference in their prior criminal record, the District Court neither erred nor abused its discretion in sentencing Giles to a longer term of imprisonment. Nothing in § 3553 precludes the Court from taking the differences between defendants into consideration. The District Court explained its sentence and application of § 3553 on the record.
Much of Giles’ pro se brief is really directed to claims of ineffective assistance of counsel. Such claims cannot be heard on direct appeal but must be raised, if at all, on a collateral attack. Finding nothing to suggest that there was an abuse of discretion or that the District Court erred, for the reasons set forth we -will affirm the judgment of conviction and sentence and grant counsel’s motion to withdraw. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475635/ | OPINION
PER CURIAM.
Rickey Danzey appeals pro se from the District Court’s denial of his motion for early termination of his supervised release, and its denial of his motion to amend. Because we conclude that this appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In April 1991, Rickey Danzey pled guilty to one count of participation in a conspiracy to distribute and possess with intent to distribute over 100 grams of heroin. At the sentencing hearing in March 1992, Danzey also entered a guilty plea to one count of unlawful possession with the intent to distribute more than 500 grams of cocaine in the Southern District of New York. The District Court sentenced him, as a career offender, to 240 months on each charge, plus five years of supervised release. Danzey filed a motion in February 2007 to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). The District Court denied the motion in March 2008, finding that the Sentencing Commission had not lowered the guidelines relevant to his sentence, and that the court thus did not have the authority under § 3582(c)(2) to modify his sentence.
Meanwhile, Danzey was released upon completing his term of incarceration on December 31, 2007. In July 2009, he filed this motion for early termination of his supervised release pursuant to 18 U.S.C. § 3583(e)(1). He included a letter from his employer, the North Jersey Community Research Initiative, d/b/a North Jersey AIDS Alliance, which attests to his employment since January 2009. The District Court denied the motion in July 2009. Danzey then filed a “Motion to Supplement Motion to Modify Term of Supervised Release,” which the District Court also denied. Danzey timely appealed.
II.
We review a District Court’s decision under § 3583(e) not to grant early termination of a term of supervised release for abuse of discretion. See United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006).
III.
Danzey argues that the District Court erred in denying his motion for early termination of his five-year period of supervised release. Section 3583(e)(1) provides that, after the defendant has completed one year of supervised release, the district court may terminate the term of supervised release if “such action is warranted by the conduct of the defendant released and the interest of justice.” The decision whether to modify a term of supervised release is a discretionary one for the sentencing court. See Burkey v. Marberry, *571556 F.3d 142, 149 (3d Cir.2009). Danzey asserts that his rehabilitation efforts while incarcerated, and his current employment with a drug abuse and HIV prevention organization, qualify him for early termination of supervised release under § 3583(e)(1). However, as the Government points out, Danzey was sentenced as a career criminal. He was arrested numerous times as a juvenile, and he served two terms of probation and a commitment to the state reformatory. His adult criminal histoiy is even more significant, including numerous arrests for crimes such as narcotics offenses, armed robbery, and armed bank robbery, as well as two separate federal sentences, and several failures to successfully complete probation and parole terms. The 18-month period following his release in 2007 is the first time since Danzey turned 15-years-old that he, now 54, has made it through a year without being incarcerated or arrested. The Government acknowledged Danzey’s success thus far, but cautioned that further supervision was required given his history, the seriousness of the crime, and the sentence he is serving for it. The District Court properly denied Danzey’s motion, after full consideration of the parties’ submissions in favor of and in opposition to the motion.
The District Court also properly denied Danzey’s motion to supplement his motion for termination of supervised release. In the motion to supplement, Danzey merely asserts again that he satisfied the requirements of § 3583(e)(1) and cites three cases with distinguishable facts in which early termination of supervised release was granted.1
IV.
For the foregoing reasons, we conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s orders. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
. In his application for a certificate for ap-pealability, which we have treated as a response regarding summary action, Danzey also claims that the District Court failed to notify him in a timely manner that it denied his motion for termination of supervised release. However, Danzey does not state when he received notice, nor does he explain how any such delay would affect our consideration of the merits of this timely appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471187/ | *319MEMORANDUM **
Dock McNeely appeals the district court’s grant of summary judgment in favor of the Sacramento County defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291, review de novo, Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir.2001), and affirm.
Before the district court, McNeely argued that the Sacramento County defendants should not have detained McNeely based upon the Placer County warrant, but he has not pursued that argument on appeal, so it is waived. The claim that the sheriff violated McNeely’s constitutional rights by acting pursuant to a facially valid warrant and court order fails, in any event, as “[l]aw enforcement officers are entitled to qualified immunity if they act reasonably under the circumstances, even if the actions result in a constitutional violation.” Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027 (9th Cir.2002). Faithful execution of a facially valid warrant and court order cannot be characterized as unreasonable.
On appeal, McNeely asserts a Mo-nell 1 claim couched in terms of the sheriffs alleged failure to notify him of “adverse legal actions.” However, he failed to plead this claim or anything like it in either of his complaints. This claim was presented for the first time as an argument in opposition to the county’s motion for summary judgment. It is not mentioned in the complaint, nor did he seek to amend his complaint. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1079-80 (9th Cir.2008) (en banc), cert. denied, — U.S.—, 129 S.Ct. 2763, 174 L.Ed.2d 270 (2009).
Furthermore, even considering that claim on the merits, McNeely still would not prevail. See Mabe, 237 F.3d at 1110-11. The court informed McNeely of Placer County’s petition to revoke his probation almost three years before he was released from Sacramento County’s custody and transferred to Placer County. Indeed, he initiated proceedings to challenge the revocation petition over a year before that transfer. The alleged failure of the Sacramento County defendants to advise McNeely did not therefore cause his continued detention. It appears unlikely that the Sacramento County defendants had a duty to inform McNeely of the status of detainers and arrest warrants from other jurisdictions (see People v. Madrigal, 77 Cal.App.4th 1050, 92 Cal.Rptr.2d 205, 206-07 (2000)); Smith v. Superior Court, 159 Cal.App.3d 1172, 206 Cal.Rptr. 282, 284 & n. 2 (1984); see also Cal.Penal Code § 1203.2a, but McNeely cannot in any event show “a direct causal link” between their failure to so inform him and “the alleged constitutional deprivation.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir.2007) (internal quotation marks omitted); see also id. at 667-68 noting that to succeed on a Monell claim, a plaintiff must establish that the county’s policy was “the moving force behind the alleged constitutional violation” (emphasis added). He had already been made aware of the Placer County revocation action, and it was his responsibility to stay informed about that action.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Monell v. New York City Dep’t. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471189/ | MEMORANDUM *
Destiny Tool (“Destiny”), SGS Tools Company (“SGS”), and Dauphin Precision Tool, LLC (“Dauphin”), all manufacture and sell carbide end mills, precision cutting heads that have many industrial uses. SGS and Dauphin (collectively, “Defendants”) own U.S. Patent No. 5,049,009 (“the '009 patent”), which claims an improved rotary cutting end mill. In 2004, Defendants filed suit in the Northern District of Ohio alleging that Destiny’s products infringed the '009 patent. After the Ohio district court in 2006 granted Defendants’ motion to dismiss their suit with prejudice, Destiny filed suit in the Northern District of California accusing Defendants of malicious prosecution and abuse of process under state law, as well as monopolization and attempted monopolization under the Sherman Act. Destiny appeals from the district court’s dismissal of all four claims. Defendants cross-appeal from the district court’s resolution of subsidiary preemption, statute of limitation, and res judicata issues. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
We review de novo a dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Madison v. Graham, 816 F.3d 867, 869 (9th Cir.2002). A Rule 12(b)(6) dismissal may be based on either the “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). We con-elude that the district court did not err in dismissing the state law claims because Destiny cannot satisfy the standards for malicious prosecution and abuse of process under Ohio law. We similarly conclude that the district court did not err in dismissing Destiny’s antitrust claims because they were compulsory counterclaims that Destiny should have raised in the Ohio patent infringement action.
A
The parties dispute whether the law of California or the law of Ohio applies to Destiny’s claims of malicious prosecution and abuse of process. When a federal court exercises supplemental jurisdiction over state law claims, it applies the choice-of-law rules of the forum state. Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1164 (9th Cir.1996). The same is true when a federal court sits in diversity. Coufal Abogados v. AT & T, Inc., 223 F.3d 932, 934 (9th Cir.2000). Because Destiny filed its suit in the Northern District of California, California’s choice-of-law rules apply. In a tort action, California courts apply the governmental interest analysis. Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 45 Cal.Rptr.3d 730, 137 P.3d 914, 917 (2006). Under this framework, a court first determines if there is a “true conflict” of law, and if so, proceeds to apply the law of the jurisdiction whose “interests would be more severely impaired if that jurisdiction’s law were not applied in the particular context presented by the case.” Id.
As all the parties acknowledge, a true conflict exists between the laws of California and Ohio with respect to claims of malicious prosecution and abuse of pro*322cess. Both claims are significantly more difficult to establish in Ohio than in California as the former state requires proof of additional elements. Specifically, only Ohio requires seizure of person or property for a cognizable malicious prosecution claim. Compare Robb v. Chagrin Lagoons Yacht Club, 75 Ohio St.Sd 264, 662 N.E.2d 9, 13-14 (1996), with MacDonald v. Joslyn, 275 Cal.App.2d 282, 79 Cal.Rptr. 707, 710-11 (1969) (citing Eastin v. Bank of Stockton, 66 Cal. 123, 4 P. 1106, 1109 (1884)). Similarly, only Ohio requires in an abuse of process claim that the underlying action be “set in motion in proper form and with probable cause.” Compare Yaklevich v. Kemp, Schaeffer & Rowe Co., 68 Ohio St.3d 294, 626 N.E.2d 115, 118 (1994), with Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613, 626 (1957).
Which state’s law governs therefore depends on which state’s interests would be more severely impaired if its law is not applied. Destiny relies on Bernhard v. Harrah’s Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976), to establish that California’s interests would be more severely impaired, whereas the Defendants rely on Engel v. CBS Inc., 981 F.2d 1076 (9th Cir.1993), to establish that Ohio’s interests would be more severely impaired. Although we agree with the district court that the question is a close one, we conclude that Ohio law governs the instant dispute. Admittedly, California has an obvious interest in protecting its citizens — in this case, Destiny — -from unwarranted and harassing litigation. But SGS is an Ohio corporation and, while SGS and Dauphin could likely have filed the original patent infringement lawsuit in any of a number of states, they chose to do so in Ohio. By enforcing stringent requirements for establishing claims of malicious prosecution and abuse of process, Ohio presumably seeks to limit the number of such claims filed against Ohio litigants. As in Engel, “[i]f a plaintiff can circumvent this requirement by filing his or her claim in a different forum, [Ohio]’s policy of limiting malicious prosecution [and abuse of process] actions, based on [Ohio] litigation, will be seriously impaired.” 981 F.2d at 1082.
As Destiny admitted below that it has not pleaded the additional elements of malicious prosecution and abuse of process required by Ohio law, the district court properly dismissed these claims under Rule 12(b)(6). Nor did the district court abuse its discretion in failing to provide Destiny an opportunity to amend the complaint, as “it is clear that the complaint could not be saved by any amendment.” Rubke v. Capitol Bancorp, Ltd., 551 F.3d 1156, 1167 (9th Cir.2009) (quoting Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir.2005)). With respect to its malicious prosecution claim, Destiny conceded at oral argument that, under Ohio law, it cannot establish the required element of seizure of person or property. See, e.g., Pheils v. Garber-Lawrence Publ’g Group, Inc., No. L-92-418, 1993 WL 513200, at *13 (Ohio Ct.App. Dec. 10, 1993) (unreported) (“We agree with the trial court that the payment of legal fees does not establish a seizure of property in a claim for civil malicious prosecution.”). And with respect to its abuse of process claim, Destiny explicitly and repeatedly alleges in its complaint that Defendants brought the Ohio action even though they “had no reasonable belief in the merits of the litigation,” an assertion that directly contradicts the Ohio requirement that the original proceeding have been brought with probable cause. See Yaklevich, 626 N.E.2d at 118.
B
The district court dismissed Destiny’s antitrust claims on the basis that, under *323Sixth Circuit law, these claims were compulsory counterclaims in the Ohio patent infringement action. Destiny argues, without citation to any authority, that Ninth Circuit law applies to this question. We disagree. The original patent infringement litigation occurred in the Sixth Circuit, and thus Sixth Circuit law more logically applies. Cf. Springs v. First Nat’l Bank of Cut Bank, 835 F.2d 1293, 1295 (9th Cir.1988) (holding that whether a claim is a compulsory counterclaim that should have been raised in an earlier state action is a question of state law).
The Sixth Circuit has not specifically addressed whether an antitrust claim is a mandatory counterclaim in prior patent infringement litigation. See P & M Servs., Inc. v. Gubb, No. 07-12816, 2008 WL 4185903, at *5 (E.D.Mich. Sep.8, 2008) (holding, in the absence of guidance from the Sixth Circuit, that such a claim is permissive). Those circuits which have considered the issue are split. In Mercoid Corp. v. Mid-Continent Investment Co., the Supreme Court treated such an antitrust counterclaim as permissive. 320 U.S. 661, 671, 64 S.Ct. 268, 88 L.Ed. 376 (1944). The Fifth and Ninth Circuits have strictly followed Mercoid in refusing to hold any antitrust claim compulsory in the underlying patent infringement lawsuit. Tank Insulation Int’l, Inc. v. Insultherm, Inc., 104 F.3d 83, 88 (5th Cir.1997); Hydranautics v. FilmTec Coup., 70 F.3d 533, 536-37 (9th Cir.1995). Other circuits, however, have interpreted Mercoid’s holding more narrowly by concluding that, with respect to patent infringement litigation, an antitrust counterclaim is permissive where based on patent misuse, but compulsory where based on patent invalidity. See, e.g., Critical-Vac Filtration Corp. v. Minuteman Int’l, Inc., 233 F.3d 697, 702-04 (2d Cir.2000); see also Genentech, Inc. v. Regents of the Univ. of Cal., 143 F.3d 1446, 1455-56 (Fed.Cir.1998), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 789 (1999).
In determining whether a counterclaim is compulsory under Rule 13(a), the Sixth Circuit generally applies the “logical relationship” test. Sanders v. First Natl. Bank & Trust Co. in Great Bend, 936 F.2d 273, 277 (6th Cir.1991). This approach looks to “whether the issues of law and fact raised by the claims are largely the same and whether substantially the same evidence would support or refute both claims.” Id. Destiny’s theory of antitrust liability is based on its allegation that Defendants fraudulently procured the '009 patent. Destiny raised the same inequitable conduct allegation in support of its motion for summary judgment in the Ohio patent infringement litigation. Thus, although the antitrust and patent, infringement claims are grounded in different statutes, they raise many of the same legal, factual, and evidentiary issues. Judicial economy and efficiency counsel analysis of these issues in a single proceeding. See Maddox v. Ky. Fin., Co., 736 F.2d 380, 383 (6th Cir.1984). Applying the logical relationship test, we therefore conclude that the district court did not err in dismissing Destiny’s antitrust counterclaims on the basis that they should have been filed in the Ohio action.
Destiny nonetheless argues that it did not have sufficient knowledge of Defendants’ misdeeds to include an antitrust counterclaim in its Ohio answer. However, it did not seek to amend its counterclaim to include antitrust allegations until more than a year after the Ohio action was filed. We refuse to now reward Destiny for sleeping on its rights.
II
In their cross-appeal, Defendants argue for dismissal of Destiny’s claims based on *324preemption, the Sherman Act’s statute of limitation, and res judicata. Because we affirm the district court on the grounds described above, we decline to reach the merits of Defendants’ cross-appeal.
Ill
We AFFIRM the district court’s order granting Defendants’ motion to dismiss Destiny’s complaint. Each party is to bear its own costs.
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/8471191/ | MEMORANDUM *
Plaintiffs-Appellees Kaltag Tribal Council (“Kaltag”), Salina Sam and Hudson Sam (collectively, “Kaltag plaintiffs”) filed this case in district court against Karleen Jackson, Bill Hogan, and Phillip Mitchell, employees of the State of Alaska, Department of Health and Human Services. The Kaltag plaintiffs alleged that an adoption judgment issued by the Kaltag court is entitled to full faith and credit under § 1911(d) of the Indian Child Welfare Act (“ICWA”), and that the Alaska employees were required to grant the request for a new birth certificate. The district court granted the Kaltag plaintiffs’ motion for summary judgment and denied the Alaska employees’ summary judgment motion. The Alaska employees appeal. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
The district court’s decision that full faith and credit be given to the Kaltag court’s adoption judgment is compelled by this circuit’s binding precedent. See Native Village of Venetie IRA Council v. Alaska, 944 F.2d 548 (9th Cir.1991). The district court correctly found that neither the ICWA nor Public Law 280 prevented the Kaltag court from exercising jurisdiction. Reservation status is not a requirement of jurisdiction because “[a] Tribe’s authority over its reservation or Indian country is incidental to its authority over its members.” Venetie, 944 F.2d at 559 n. 12 (citations omitted).
The Eleventh Amendment does not bar the relief sought by the Kaltag plaintiffs. Id. at 552.
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/8471195/ | MEMORANDUM **
Hotman-Efendy Simbolon, a native and citizen of Indonesia, seeks review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, *328relief under the Convention Against Tor-toe (“CAT”), and denying his motion to remand proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, see Hoxha v. Ashcroft, 319 F.3d 1179, 1182, n. 4 (9th Cir.2003) and denials of motions to remand for abuse of discretion, see Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003). We deny the petition for review.
Substantial evidence supports the agency’s finding that Simbolon did not show changed circumstances to excuse the late filing of his asylum application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4).
In addition, even if the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004) applies to Simbolon, a Seventh Day Adventist Christian, he has not demonstrated the requisite individualized risk of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc) (“no evidence that [petitioner] has been, or is likely to be, specifically targeted for persecution by any individual or group in Indonesia” and nothing “suggests that [petitioner’s] fears are distinct from those felt by all other [ ] Christians in Indonesia.”). Finally, on the record, Simbolon failed to establish a pattern or practice of persecution of Christians in Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1060-61 (9th Cir.2009); cf. Lolong, 484 F.3d at 1180-81.
Furthermore, substantial evidence supports the BIA’s denial of CAT relief because Simbolon failed to establish it is more likely than not he would be tortured if returned to Indonesia. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
Finally, the BIA did not abuse its discretion in denying Simbolon’s motion to remand proceedings because he failed to present previously unavailable, material evidence to warrant a remand. See 8 C.F.R. § 1003.2(c)(1).
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/8471186/ | MEMORANDUM *
Peter G. Crane petitions for review of the Nuclear Regulatory Commission’s denial of his petition for rulemaking concerning the standards for release of patients treated with unsealed byproduct material. See 10 C.F.R. § 35.75.
Before reaching the merits of his petition, we must ascertain our jurisdiction. Crane has not shown “an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Crane’s asserted injury is that if he has a recurrence of the thyroid cancer he last suffered eighteen years ago, he may be subjected to treatment under the current release standards that raise the concerns his petition for rulemaking addressed. The record does not include any affidavit or medical record to demonstrate the risk of recurrence or the likelihood that, if he suffered a recurrence, his treatment would involve exposing others to radioactive iodine. See Nw. Envtl. Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1527-28 (9th Cir.1997) (because Article III standing requirements did not apply to agency proceedings, petitioners established standing on direct review in this court by submitting affidavits to the court during the briefing phase); cf. Sierra Club v. EPA, 292 F.3d 895, 900-902 (D.C.Cir.2002). As we have no basis to evaluate Crane’s risk of thyroid cancer recurrence and likelihood of treatment raising the concerns his petition for rule-making addressed, we conclude that the conditional nature of Crane’s injury is just the sort of hypothetical controversy over which we lack jurisdiction.
Petition DISMISSED.
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/8471188/ | *319MEMORANDUM **
Dock McNeely appeals the district court’s grant of summary judgment in favor of the Sacramento County defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291, review de novo, Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir.2001), and affirm.
Before the district court, McNeely argued that the Sacramento County defendants should not have detained McNeely based upon the Placer County warrant, but he has not pursued that argument on appeal, so it is waived. The claim that the sheriff violated McNeely’s constitutional rights by acting pursuant to a facially valid warrant and court order fails, in any event, as “[l]aw enforcement officers are entitled to qualified immunity if they act reasonably under the circumstances, even if the actions result in a constitutional violation.” Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1027 (9th Cir.2002). Faithful execution of a facially valid warrant and court order cannot be characterized as unreasonable.
On appeal, McNeely asserts a Mo-nell 1 claim couched in terms of the sheriffs alleged failure to notify him of “adverse legal actions.” However, he failed to plead this claim or anything like it in either of his complaints. This claim was presented for the first time as an argument in opposition to the county’s motion for summary judgment. It is not mentioned in the complaint, nor did he seek to amend his complaint. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1079-80 (9th Cir.2008) (en banc), cert. denied, — U.S.—, 129 S.Ct. 2763, 174 L.Ed.2d 270 (2009).
Furthermore, even considering that claim on the merits, McNeely still would not prevail. See Mabe, 237 F.3d at 1110-11. The court informed McNeely of Placer County’s petition to revoke his probation almost three years before he was released from Sacramento County’s custody and transferred to Placer County. Indeed, he initiated proceedings to challenge the revocation petition over a year before that transfer. The alleged failure of the Sacramento County defendants to advise McNeely did not therefore cause his continued detention. It appears unlikely that the Sacramento County defendants had a duty to inform McNeely of the status of detainers and arrest warrants from other jurisdictions (see People v. Madrigal, 77 Cal.App.4th 1050, 92 Cal.Rptr.2d 205, 206-07 (2000)); Smith v. Superior Court, 159 Cal.App.3d 1172, 206 Cal.Rptr. 282, 284 & n. 2 (1984); see also Cal.Penal Code § 1203.2a, but McNeely cannot in any event show “a direct causal link” between their failure to so inform him and “the alleged constitutional deprivation.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir.2007) (internal quotation marks omitted); see also id. at 667-68 noting that to succeed on a Monell claim, a plaintiff must establish that the county’s policy was “the moving force behind the alleged constitutional violation” (emphasis added). He had already been made aware of the Placer County revocation action, and it was his responsibility to stay informed about that action.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Monell v. New York City Dep’t. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471190/ | MEMORANDUM *
Destiny Tool (“Destiny”), SGS Tools Company (“SGS”), and Dauphin Precision Tool, LLC (“Dauphin”), all manufacture and sell carbide end mills, precision cutting heads that have many industrial uses. SGS and Dauphin (collectively, “Defendants”) own U.S. Patent No. 5,049,009 (“the '009 patent”), which claims an improved rotary cutting end mill. In 2004, Defendants filed suit in the Northern District of Ohio alleging that Destiny’s products infringed the '009 patent. After the Ohio district court in 2006 granted Defendants’ motion to dismiss their suit with prejudice, Destiny filed suit in the Northern District of California accusing Defendants of malicious prosecution and abuse of process under state law, as well as monopolization and attempted monopolization under the Sherman Act. Destiny appeals from the district court’s dismissal of all four claims. Defendants cross-appeal from the district court’s resolution of subsidiary preemption, statute of limitation, and res judicata issues. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
We review de novo a dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Madison v. Graham, 816 F.3d 867, 869 (9th Cir.2002). A Rule 12(b)(6) dismissal may be based on either the “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). We con-elude that the district court did not err in dismissing the state law claims because Destiny cannot satisfy the standards for malicious prosecution and abuse of process under Ohio law. We similarly conclude that the district court did not err in dismissing Destiny’s antitrust claims because they were compulsory counterclaims that Destiny should have raised in the Ohio patent infringement action.
A
The parties dispute whether the law of California or the law of Ohio applies to Destiny’s claims of malicious prosecution and abuse of process. When a federal court exercises supplemental jurisdiction over state law claims, it applies the choice-of-law rules of the forum state. Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1164 (9th Cir.1996). The same is true when a federal court sits in diversity. Coufal Abogados v. AT & T, Inc., 223 F.3d 932, 934 (9th Cir.2000). Because Destiny filed its suit in the Northern District of California, California’s choice-of-law rules apply. In a tort action, California courts apply the governmental interest analysis. Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 45 Cal.Rptr.3d 730, 137 P.3d 914, 917 (2006). Under this framework, a court first determines if there is a “true conflict” of law, and if so, proceeds to apply the law of the jurisdiction whose “interests would be more severely impaired if that jurisdiction’s law were not applied in the particular context presented by the case.” Id.
As all the parties acknowledge, a true conflict exists between the laws of California and Ohio with respect to claims of malicious prosecution and abuse of pro*322cess. Both claims are significantly more difficult to establish in Ohio than in California as the former state requires proof of additional elements. Specifically, only Ohio requires seizure of person or property for a cognizable malicious prosecution claim. Compare Robb v. Chagrin Lagoons Yacht Club, 75 Ohio St.Sd 264, 662 N.E.2d 9, 13-14 (1996), with MacDonald v. Joslyn, 275 Cal.App.2d 282, 79 Cal.Rptr. 707, 710-11 (1969) (citing Eastin v. Bank of Stockton, 66 Cal. 123, 4 P. 1106, 1109 (1884)). Similarly, only Ohio requires in an abuse of process claim that the underlying action be “set in motion in proper form and with probable cause.” Compare Yaklevich v. Kemp, Schaeffer & Rowe Co., 68 Ohio St.3d 294, 626 N.E.2d 115, 118 (1994), with Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613, 626 (1957).
Which state’s law governs therefore depends on which state’s interests would be more severely impaired if its law is not applied. Destiny relies on Bernhard v. Harrah’s Club, 16 Cal.3d 313, 128 Cal.Rptr. 215, 546 P.2d 719 (1976), to establish that California’s interests would be more severely impaired, whereas the Defendants rely on Engel v. CBS Inc., 981 F.2d 1076 (9th Cir.1993), to establish that Ohio’s interests would be more severely impaired. Although we agree with the district court that the question is a close one, we conclude that Ohio law governs the instant dispute. Admittedly, California has an obvious interest in protecting its citizens — in this case, Destiny — -from unwarranted and harassing litigation. But SGS is an Ohio corporation and, while SGS and Dauphin could likely have filed the original patent infringement lawsuit in any of a number of states, they chose to do so in Ohio. By enforcing stringent requirements for establishing claims of malicious prosecution and abuse of process, Ohio presumably seeks to limit the number of such claims filed against Ohio litigants. As in Engel, “[i]f a plaintiff can circumvent this requirement by filing his or her claim in a different forum, [Ohio]’s policy of limiting malicious prosecution [and abuse of process] actions, based on [Ohio] litigation, will be seriously impaired.” 981 F.2d at 1082.
As Destiny admitted below that it has not pleaded the additional elements of malicious prosecution and abuse of process required by Ohio law, the district court properly dismissed these claims under Rule 12(b)(6). Nor did the district court abuse its discretion in failing to provide Destiny an opportunity to amend the complaint, as “it is clear that the complaint could not be saved by any amendment.” Rubke v. Capitol Bancorp, Ltd., 551 F.3d 1156, 1167 (9th Cir.2009) (quoting Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir.2005)). With respect to its malicious prosecution claim, Destiny conceded at oral argument that, under Ohio law, it cannot establish the required element of seizure of person or property. See, e.g., Pheils v. Garber-Lawrence Publ’g Group, Inc., No. L-92-418, 1993 WL 513200, at *13 (Ohio Ct.App. Dec. 10, 1993) (unreported) (“We agree with the trial court that the payment of legal fees does not establish a seizure of property in a claim for civil malicious prosecution.”). And with respect to its abuse of process claim, Destiny explicitly and repeatedly alleges in its complaint that Defendants brought the Ohio action even though they “had no reasonable belief in the merits of the litigation,” an assertion that directly contradicts the Ohio requirement that the original proceeding have been brought with probable cause. See Yaklevich, 626 N.E.2d at 118.
B
The district court dismissed Destiny’s antitrust claims on the basis that, under *323Sixth Circuit law, these claims were compulsory counterclaims in the Ohio patent infringement action. Destiny argues, without citation to any authority, that Ninth Circuit law applies to this question. We disagree. The original patent infringement litigation occurred in the Sixth Circuit, and thus Sixth Circuit law more logically applies. Cf. Springs v. First Nat’l Bank of Cut Bank, 835 F.2d 1293, 1295 (9th Cir.1988) (holding that whether a claim is a compulsory counterclaim that should have been raised in an earlier state action is a question of state law).
The Sixth Circuit has not specifically addressed whether an antitrust claim is a mandatory counterclaim in prior patent infringement litigation. See P & M Servs., Inc. v. Gubb, No. 07-12816, 2008 WL 4185903, at *5 (E.D.Mich. Sep.8, 2008) (holding, in the absence of guidance from the Sixth Circuit, that such a claim is permissive). Those circuits which have considered the issue are split. In Mercoid Corp. v. Mid-Continent Investment Co., the Supreme Court treated such an antitrust counterclaim as permissive. 320 U.S. 661, 671, 64 S.Ct. 268, 88 L.Ed. 376 (1944). The Fifth and Ninth Circuits have strictly followed Mercoid in refusing to hold any antitrust claim compulsory in the underlying patent infringement lawsuit. Tank Insulation Int’l, Inc. v. Insultherm, Inc., 104 F.3d 83, 88 (5th Cir.1997); Hydranautics v. FilmTec Coup., 70 F.3d 533, 536-37 (9th Cir.1995). Other circuits, however, have interpreted Mercoid’s holding more narrowly by concluding that, with respect to patent infringement litigation, an antitrust counterclaim is permissive where based on patent misuse, but compulsory where based on patent invalidity. See, e.g., Critical-Vac Filtration Corp. v. Minuteman Int’l, Inc., 233 F.3d 697, 702-04 (2d Cir.2000); see also Genentech, Inc. v. Regents of the Univ. of Cal., 143 F.3d 1446, 1455-56 (Fed.Cir.1998), vacated on other grounds, 527 U.S. 1031, 119 S.Ct. 2388, 144 L.Ed.2d 789 (1999).
In determining whether a counterclaim is compulsory under Rule 13(a), the Sixth Circuit generally applies the “logical relationship” test. Sanders v. First Natl. Bank & Trust Co. in Great Bend, 936 F.2d 273, 277 (6th Cir.1991). This approach looks to “whether the issues of law and fact raised by the claims are largely the same and whether substantially the same evidence would support or refute both claims.” Id. Destiny’s theory of antitrust liability is based on its allegation that Defendants fraudulently procured the '009 patent. Destiny raised the same inequitable conduct allegation in support of its motion for summary judgment in the Ohio patent infringement litigation. Thus, although the antitrust and patent, infringement claims are grounded in different statutes, they raise many of the same legal, factual, and evidentiary issues. Judicial economy and efficiency counsel analysis of these issues in a single proceeding. See Maddox v. Ky. Fin., Co., 736 F.2d 380, 383 (6th Cir.1984). Applying the logical relationship test, we therefore conclude that the district court did not err in dismissing Destiny’s antitrust counterclaims on the basis that they should have been filed in the Ohio action.
Destiny nonetheless argues that it did not have sufficient knowledge of Defendants’ misdeeds to include an antitrust counterclaim in its Ohio answer. However, it did not seek to amend its counterclaim to include antitrust allegations until more than a year after the Ohio action was filed. We refuse to now reward Destiny for sleeping on its rights.
II
In their cross-appeal, Defendants argue for dismissal of Destiny’s claims based on *324preemption, the Sherman Act’s statute of limitation, and res judicata. Because we affirm the district court on the grounds described above, we decline to reach the merits of Defendants’ cross-appeal.
Ill
We AFFIRM the district court’s order granting Defendants’ motion to dismiss Destiny’s complaint. Each party is to bear its own costs.
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/8471194/ | MEMORANDUM **
Ricardo Lopez Bravo, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion, Morales Apolinar v. Mukasey, 514 F.3d 893, 895 (9th Cir.2008), we deny in part and dismiss in part the petition for review.
The BIA was within its discretion in denying Lopez Bravo’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior order dismissing the underlying appeal. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).
To the extent Lopez Bravo challenges the BIA’s December 28, 2006 order, we lack jurisdiction because the petition for review is not timely as to that order. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471196/ | MEMORANDUM **
Hotman-Efendy Simbolon, a native and citizen of Indonesia, seeks review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, *328relief under the Convention Against Tor-toe (“CAT”), and denying his motion to remand proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, see Hoxha v. Ashcroft, 319 F.3d 1179, 1182, n. 4 (9th Cir.2003) and denials of motions to remand for abuse of discretion, see Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003). We deny the petition for review.
Substantial evidence supports the agency’s finding that Simbolon did not show changed circumstances to excuse the late filing of his asylum application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4).
In addition, even if the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004) applies to Simbolon, a Seventh Day Adventist Christian, he has not demonstrated the requisite individualized risk of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc) (“no evidence that [petitioner] has been, or is likely to be, specifically targeted for persecution by any individual or group in Indonesia” and nothing “suggests that [petitioner’s] fears are distinct from those felt by all other [ ] Christians in Indonesia.”). Finally, on the record, Simbolon failed to establish a pattern or practice of persecution of Christians in Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1060-61 (9th Cir.2009); cf. Lolong, 484 F.3d at 1180-81.
Furthermore, substantial evidence supports the BIA’s denial of CAT relief because Simbolon failed to establish it is more likely than not he would be tortured if returned to Indonesia. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
Finally, the BIA did not abuse its discretion in denying Simbolon’s motion to remand proceedings because he failed to present previously unavailable, material evidence to warrant a remand. See 8 C.F.R. § 1003.2(c)(1).
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/8472713/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Taylor appeals the district court’s order denying his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Taylor, No. 5:93-cr-00132-F-1 (E.D.N.C. Feb. 25, 2009). We dispense with oral argument because the facts and legal con*963tentions 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/8471197/ | MEMORANDUM **
Rika Fristda Siringo Ringo, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and we deny the petition for review.
The agency denied Siringo Ringo’s asylum claim as time-barred. Siringo Ringo does not challenge this finding in her opening brief.
Substantial evidence supports the BIA’s finding that Siringo Ringo’s experiences in Indonesia did not rise to the level of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir.2003). In addition, substantial evidence supports the BIA’s conclusion that as even a member of a disfavored group, Siringo Ringo failed to establish a clear probability of persecution because she did not demonstrate sufficient individualized risk. See Hoxha v. Ashcroft, 319 F.3d 1179, 1185 *330(9th Cir.2003). Lastly, the record does not compel the conclusion that Siringo Ringo established a pattern or practice of persecution against Christians in Indonesia. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc). Accordingly, Siringo Ringo’s withholding of removal claim fails.
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/8471201/ | *332MEMORANDUM **
Martin Gonzalez-Robles appeals from the 87-month sentence imposed following his guilty-plea conviction for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Gonzalez-Robles contends that the district court improperly determined that he was ineligible for “safety valve” relief pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, and failed adequately to explain that determination. For those reasons, he also contends that his sentence is unreasonable. The district court did not clearly err in finding that Gonzalez-Robles did not truthfully provide all relevant information concerning the conduct for which he was sentenced. See United States v. Ajugwo, 82 F.3d 925, 929-30 (9th Cir.1996); 18 U.S.C. § 3553(f)(5).
The district court did not err in explaining that determination. See Rita v. United States, 551 U.S. 338, 358-60, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Further, the district court’s sentence determination was not unreasonable. See id.
The Government’s motion to supplement the record is granted.
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/8471204/ | MEMORANDUM **
Satbir Singh, a native and citizen of India, seeks review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review.
Singh testified inconsistently with respect to whether he was hung upside down during his 1995 arrest and with respect to whether the police contacted his family while he was hiding in India, see Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005), and he failed to adequately explain these discrepancies when given the opportunity, see id. at 1066-67. Because the inconsistencies go to the heart of his claim, substantial evidence supports the BIA’s adverse credibility determination. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). Accordingly Singh’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Finally, because Singh’s CAT claim is based on the same statements the BIA found to be not credible, and he does not point to any other evidence in the record that compels the conclusion that it is more likely than not he would be tortured if returned to India, substantial evidence supports the BIA’s denial of CAT. See id. at 1156-57.
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/8472714/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steve Hickman appeals the district court’s order denying his motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hickman, No. 5:93-cr-00144-BO-2 (E.D.N.C. filed July 21, 2009 & entered July 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471198/ | MEMORANDUM **
Rika Fristda Siringo Ringo, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and we deny the petition for review.
The agency denied Siringo Ringo’s asylum claim as time-barred. Siringo Ringo does not challenge this finding in her opening brief.
Substantial evidence supports the BIA’s finding that Siringo Ringo’s experiences in Indonesia did not rise to the level of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir.2003). In addition, substantial evidence supports the BIA’s conclusion that as even a member of a disfavored group, Siringo Ringo failed to establish a clear probability of persecution because she did not demonstrate sufficient individualized risk. See Hoxha v. Ashcroft, 319 F.3d 1179, 1185 *330(9th Cir.2003). Lastly, the record does not compel the conclusion that Siringo Ringo established a pattern or practice of persecution against Christians in Indonesia. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc). Accordingly, Siringo Ringo’s withholding of removal claim fails.
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/8471199/ | MEMORANDUM **
Manvel Hakobyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny the petition for review.
*331The BIA did not abuse its discretion in denying Hakobyan’s motion as untimely because the motion was filed more than 33 months after the BIA’s October 6, 2003 order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Hakobyan failed to establish that he acted with the due diligence required for equitable tolling, see Iturribcmia, 321 F.3d at 897 (equitable tolling available where “petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”).
Hakobyan’s remaining contentions are unavailing.
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/8471202/ | *332MEMORANDUM **
Martin Gonzalez-Robles appeals from the 87-month sentence imposed following his guilty-plea conviction for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Gonzalez-Robles contends that the district court improperly determined that he was ineligible for “safety valve” relief pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, and failed adequately to explain that determination. For those reasons, he also contends that his sentence is unreasonable. The district court did not clearly err in finding that Gonzalez-Robles did not truthfully provide all relevant information concerning the conduct for which he was sentenced. See United States v. Ajugwo, 82 F.3d 925, 929-30 (9th Cir.1996); 18 U.S.C. § 3553(f)(5).
The district court did not err in explaining that determination. See Rita v. United States, 551 U.S. 338, 358-60, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Further, the district court’s sentence determination was not unreasonable. See id.
The Government’s motion to supplement the record is granted.
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/8471203/ | MEMORANDUM **
Satbir Singh, a native and citizen of India, seeks review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review.
Singh testified inconsistently with respect to whether he was hung upside down during his 1995 arrest and with respect to whether the police contacted his family while he was hiding in India, see Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005), and he failed to adequately explain these discrepancies when given the opportunity, see id. at 1066-67. Because the inconsistencies go to the heart of his claim, substantial evidence supports the BIA’s adverse credibility determination. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). Accordingly Singh’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Finally, because Singh’s CAT claim is based on the same statements the BIA found to be not credible, and he does not point to any other evidence in the record that compels the conclusion that it is more likely than not he would be tortured if returned to India, substantial evidence supports the BIA’s denial of CAT. See id. at 1156-57.
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/8472715/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steve Hickman appeals the district court’s order denying his motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hickman, No. 5:93-cr-00144-BO-2 (E.D.N.C. filed July 21, 2009 & entered July 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471205/ | MEMORANDUM **
Wilson Adonies Mazariegos-Santos, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Lim v. INS, 224 F.3d 929, 933(9th Cir.2000), and we deny the petition for review.
Substantial evidence supports the BIA’s conclusion that Mazariegos-Santos did not establish past persecution because the threats he received did not amount to persecution. See id. at 936-37. Substantial evidence also supports the BIA’s finding that Mazariegos-Santos’ fear *335of future persecution from members of the Guatemalan Republican Front was not objectively reasonable, see Abebe v. Gonzales, 432 F.3d 1037, 1043-44 (9th Cir.2005), and that he failed to establish that it would be “either unsafe or unreasonable” for him to relocate to another part of Guatemala, see Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir.2004) (discussing standard for internal relocation); 8 C.F.R. § 1208.13(b)(3)(i).
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/8471207/ | MEMORANDUM **
Edison R. Walker appeals from the district court’s order denying his motion under Federal Rule of Civil Procedure 60(b)(1) for relief from the judgment. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Franchise Holding II, LLC. v. Huntington *336Rests. Group, Inc., 375 F.3d 922, 927 n. 4 (9th Cir.2004), and we affirm.
The district court did not abuse its discretion by denying Walker’s motion because it was filed three-and-a-half months after judgment was entered and Walker presented no justifiable reason for the delay. See id. at 927 (discussing factors relevant to whether neglect was excusable under Rule 60(b)).
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/8471209/ | MEMORANDUM **
Petitioners Enkhbat Arild and Chulu-untsetseeg Shagdar, husband and wife, and their minor child, all natives and citizens of Mongolia, seek review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997), and we deny the petition for review.
The BIA only affirmed the IJ’s credibility finding based on petitioners’ demeanor during their testimony. Petitioners do not raise any challenge to the dispositive demeanor finding in their opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996). Accordingly, we deny the petition.
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/8471213/ | MEMORANDUM **
Chand Singh Mali, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination because Mali testified inconsistently regarding the timing of his first arrest and whether he received medical treatment after his detention, and because the doctor’s letter Mali submitted omitted any mention of the electrocution he allegedly suffered during his third arrest. See Li v. Ash*340croft, 378 F.3d 959, 962 (9th Cir.2004). In the absence of credible testimony, Mali has failed to establish that he is eligible for asylum or withholding of removal. See Fatah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Mali’s CAT claim is based on the same evidence the agency found not credible, and he points to no other evidence to show it is more likely than not he would be tortured if returned to India, his CAT claim fails. See id. at 1156-57.
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/8475638/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
Sergio Garcia-Velazco appeals from an Order of the District Court imposing a sentence of 41 months of imprisonment for illegal reentry following deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). For the reasons set forth below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts.
Garcia-Velazco is a Mexican citizen who illegally entered the United States in 1998. On June 19, 2000, Garcia-Velazco was arrested for trafficking heroin, and was subsequently convicted and sentenced to 24 *573months of imprisonment for the crime. Upon his release in October 2001, Garcia-Velazco was deported to Mexico.
Garcia-Velazco illegally reentered the United States in March 2007. In December 2007, Garcia-Velazco was arrested for aggravated assault. While the charge was ultimately dropped, he was indicted for illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). He pled guilty to the indictment on October 9, 2008.
At sentencing, Garcia-Velazco challenged the constitutionality of § 1326(b)(2), which sets a statutory maximum sentence of 20 years for an illegal reentrant who was previously deported from the United States after an aggravated felony conviction. The District Court rejected this argument. He next requested a downward variance based upon a policy disagreement with Guideline § 2L1.2, which sets the base offense level for unlawful reentry at 8, but instructs courts to add 16 levels if the offender was previously deported after being convicted of a drug trafficking felony. The District Court declined to vary from the Guidelines, and used § 2L1.2 to calculate the applicable Guidelines range as 41-51 months of imprisonment. The District Court then considered all of the § 3553(a) factors, and ultimately imposed a sentence of 41 months of imprisonment— which is at the bottom end of the recommended Guidelines range — and three years of supervised release. The District Court entered a Judgment of Conviction on February 4, 2009, and Garcia-Velazco filed a timely notice of appeal to this Court.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We apply a plenary standard of review to a district court’s interpretation of the Sentencing Guidelines, but will review a district court’s findings of fact relevant to the Guidelines for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007). We review the sentence imposed by the District Court under an abuse of discretion standard, and will only vacate the sentence if it is unreasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
III.
Garcia-Velazco first argues that the District Court erred because it did not believe it had the power to reject a provision of the Guidelines based upon a policy disagreement. In making this argument, Garcia-Velazco relies heavily upon the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), in which the Court held that district courts were within their discretion in sentencing to reject, as a policy matter, certain provisions of the Guidelines concerning sentencing for crimes involving crack cocaine. Garcia-Velazco asserts that here, the District Court disagreed as a policy matter with Guideline § 2L1.2, which provides the relevant Guidelines offense level calculations for those convicted of illegal reentry, but that the District Court erroneously believed it was powerless to sentence outside the Guidelines range. We disagree.
This assertion is based upon the District Court’s statement at the sentencing hearing that it was “not in a position to vary from existing law.” App. 89. Garcia-Ve-lazco confuses this relatively straightforward statement of judicial restraint with an expression of policy disagreement with § 2L1.2. The other statements made at the sentencing hearing show that the District Court “acknowledge^] that the range does have merit in its creation. And of course, *574it’s advisory.” App. 90. The District Court went on to note that the purpose of the enhancement was to deter those who had been deported after a serious conviction from illegally reentering the United States. App. 91.
Significantly, at no point during the hearing did the District Court say that it actually disagreed with the enhancement provided for in § 2L1.2, or that it believed that a 16-level enhancement was unduly harsh. To the contrary, the District Court noted that “in keeping with 3553(a), I feel that the following sentence is appropriate.” App. 92. The District Court also noted several times that the Guidelines calculation was merely advisory.
Since there is no evidence from the record that the District Court misunderstood its power to differ from the policy embodied by the § 2L1.2 enhancement, or that the District Court felt that the enhancement was not in accordance with the goals of sentencing as set forth in the § 3553(a) factors, we conclude that the District Court committed no error in refusing to accept Garcia-Velazco’s argument that the 16-level enhancement was unfair as a matter of policy.
IV.
Garcia-Velazco next argues that the District Court’s sentence of 41 months of imprisonment is substantively unreasonable because it is disproportionate to the seriousness of his illegal reentry offense. We disagree.
The District Court made the appropriate calculations under the Guidelines and arrived at a sentencing range of 41 to 51 months. The District Court then heard arguments from both sides regarding whether a variance would be appropriate. Although the District Court acknowledged Garcia-Velazco’s “benign motivation” for reentering the United States, App. 90, it still found that the illegal reentry was “a serious offense and it has to be regarded as such,” App. 91. The District Court went on to state that the sentence imposed must promote respect for the law, adequately deter future criminal acts, and protect the public from further criminal acts by Garcia-Velazco. App. 91. Rejecting Garcia-Velazco’s arguments for downward variance, the District Court underscored the danger to society posed by drug trafficking by foreign nationals, and the need for punishment and deterrence of those involved in such activities.
The record demonstrates that the District Court appropriately considered the relevant § 3553(a) factors in imposing the sentence. The court specifically addressed the nature of the offense, the motivation behind the offense, Garcia-Velazco’s background and family situation, and whether the Guidelines recommendation for illegal reentry was unfairly punitive. The 41-month sentence accurately reflects the goals of sentencing for the crime, and there is nothing in the record which would indicate that the particular facts of Garcia-Velazco’s case are so unique as to require a sentence below the Guidelines range in order to be reasonable. We find no cause to disturb the District Court’s reasoned analysis.
V.
Garcia-Velazeo’s final contention on appeal is that the District Court erred in not striking down 8 U.S.C. § 1326(b)(2) as unconstitutional. That section provides that one convicted of illegal reentry who had previously been deported subsequent to an aggravated felony conviction can face up to 20 years of imprisonment. Garcia-Velazco’s contention is that since this section does not require an admission or jury verdict regarding the circumstances of the prior conviction and deportation, it violates defendants’ Sixth Amendment right to *575have all elements of a crime determined beyond a reasonable doubt by a jury.
Garcia-Velazco acknowledges that there is binding Supreme Court precedent which explicitly upheld the constitutionality of that statute, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but argues that more recent cases, specifically Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), undermine the basis of the Supreme Court’s prior holding such that if the issue were to be decided by the Court today, the statute would be struck down as unconstitutional. Garcia-Velazco also acknowledges, however, that this Court is foreclosed from making a decision on § 1326(b)(2)’s constitutionality unless and until the Supreme Court overrules its prior decision in Almendarez-Torres, and he merely seeks to preserve this issue for future review.
Since the Supreme Court has explicitly held that § 1326(b)(2) is constitutional, and that holding has not been overruled or abrogated by the Court in the intervening period, we hold that the District Court committed no error in applying that section in sentencing Garcia-Velazco. Because Garcia-Velazeo’s challenge to § 1326(b)(2)’s constitutionality is barred by Almendarez-Torres, we need not reach the Government’s argument that Garcia-Velazco waived his right to challenge the statute when he pled guilty.
VI.
For these reasons, we will affirm the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475640/ | *577OPINION
PER CURIAM.
Hua Yang, a native and citizen of the People’s Republic of China, entered the United States without inspection in 2005. The Government later charged him with removability, which he conceded before an Immigration Judge (“IJ”). Through counsel, Yang applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), asserting that he feared returning to China where he faced religious persecution for organizing and participating in an underground Roman Catholic church in his hometown.
The IJ made an adverse credibility determination on the basis that Yang’s testimony was in conflict with his documentary evidence, which the IJ described as “not authenticated.” Because of this “lack of credibility” and “implausibility,” the IJ denied Yang’s asylum application. The IJ also noted, that “even in the alternative, [she] would have to find” that Yang had not shown past persecution. She subsequently concluded that he had not shown that he would be subject to future persecution. On the same reasoning, the IJ denied the withholding claim. She also held that Yang had set forth no facts or circumstances to show that he would be tortured on return to China and denied the CAT claim.
Yang appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Yang’s appeal. The BIA stated that Yang did not challenge the IJ’s factual findings and held that the IJ’s legal conclusions were correct for the reasons given by the IJ. In particular, the BIA held that Yang did not establish a fear of persecution “given discrepancies concerning his relationship with a government sanctioned church.” The BIA also especially noted that Yang did not “submit documentation to corroborate his claim that fellow underground church members are being persecuted by the Chinese government.”
Yang petitions for review of the BIA’s decision.1 We have jurisdiction over Yang’s petition under 8 U.S.C. § 1252(a). In reviewing the BIA’s and IJ’s decisions, see Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004), we consider questions of law de novo,2 See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, like an adverse credibility determination, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be afforded substantial deference, so long as the finding is supported by sufficient, cogent reasons. See id. at 434. We evaluate whether the credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen, 376 F.3d at 223.
We note that before the enactment of the REAL ID Act of 2005, an adverse credibility determination could be based on inconsistencies only if the inconsistencies went to the heart of the claim. See Chuk-*578wu v. Attorney Gen. of the United States, 484 F.3d 185, 189 (3d Cir.2007). However, a new REAL ID Act standard, which provides that “credibility determinations may be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,’ ” applies to Yang’s case because he filed his application for relief from removal after May 11, 2005. See id. (quoting the REAL ID Act); see also Kaita v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir.2008). Although we have not yet spoken on what the change in the law means, we conclude that the credibility finding in this case is suspect under the pre-REAL ID Act standard and any stricter standard of review that follows from the REAL ID Act. See, e.g., Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
First, we are perplexed by the BIA’s statement that Yang did not challenge the IJ’s factual findings. That statement is simply not correct because, among other things, Yang’s appeal brief to the BIA plainly challenges the IJ’s core adverse credibility findings. See R. 16-17.
Second, in dismissing the appeal, the BIA specifically relied on the IJ’s reasoning that Yang’s testimony about his underground church activities was contradicted by the letter that he submitted from the Bishop of the Catholic Church in the Mawei district. However, the IJ’s conclusion that the evidence in the letter “is completely and totally different from the testimony” is clearly erroneous. At the immigration hearing, Yang was asked whether he attended the government-approved Catholic Church in the Mawei district. He stated that he was baptized there, but that he regularly attended the underground churches in his hometown. The IJ disbelieved that testimony, pointing to the Bishop’s letter which, the IJ insisted, indicated that Yang “frequently attended mass there [in the Catholic Church in the Mawei district].” However, the letter indicates only that Yang was a good member of the Catholic church in his hometown and not that he was a good member of the Bishop’s church in the Mawei district, which Yang testified was far away from his village. Throughout the hearing, Yang consistently testified that he regularly attended underground masses that he organized in his hometown.
In regard to the letter, the IJ also questioned Yang about why the Bishop indicated “that the government of the People’s Republic of China does not provide religious freedom to individuals in China.” The IJ found Yang’s response inadequate. First, the IJ mischaracterized the Bishop’s statement a bit. In context, it was that “[a]lthough China is not a free country for religious belief, [Yang] was enthusiastic in the Gongjiao activities.” The statement was not inconsistent with Yang’s account nor is it in conflict with the 2006 International Religious Freedom Report that the IJ considered. As Yang conceded, the Bishop may have been taking a chance in including such a statement in a letter. And the IJ, in determining whether a letter from the Bishop would include a comment on religious freedom in China, could “draw inferences based on common sense and logic as well as on personal experience and background knowledge gained from exposure to certain situations,” Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir.2003). However, the IJ did not do this so much as take Yang to task for not being able to articulate the Bishop’s reason for including the comment about religious freedom.
The IJ also faulted Yang’s testimony for its lack of details. It has been said that “details matter.” Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir.2008). However, at the hearing, Yang plainly and consistently described his activities, including the following: that he and his family orga*579nized masses in his house; that he distributed literature in the village; and that, as a result of these activities in the village, the underground church grew. Moreover, he also described how he escaped from the village office where he was detained, and how, with the assistance of his uncle, he escaped to a relative’s house and then to the United States. While he did not provide much information about where his parents have been living in hiding, the lack of details alone does not support the adverse credibility determination in this case. Had the IJ not understood the Bishop’s letter as contradicting the testimony, it is unclear if the IJ would have made the adverse credibility finding.
Furthermore, it was “in light of the [perceived] contradictory testimony” that the IJ gave little weight to a summons for him to appear at the police station and a subpoena for him to appear in court. As the IJ acknowledged, the summons and the subpoena were sent to a forensic lab and the Forensic Document Examiner confirmed that the forms were authentic; however, the Examiner could make no further conclusions regarding the document’s authenticity without specimens of the handwriting and authenticating seals of the author.
The IJ also noted that Yang did not coiToborate the portion of his claim involving hiding with relatives and his testimony about other underground church members being questioned. However, it is not clear if the IJ would have required corroboration in the absence of her mistake about the contradictions in the testimony. Compare Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (holding that an alien’s credible testimony may satisfy the burden of proof for a claim for asylum or other relief from removal) with Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (allowing the agency to require even “otherwise-credible applicants to supply corroborating evidence in order to meet their burden of proof’).
Finally, we address the IJ’s summary alternative conclusion (or conditional and alternative conclusion) that Yang had not carried his burden of showing that he suffered past persecution or that he would face future persecution. In that evaluation, the IJ acknowledged, but simply did not address, Yang’s testimony that his religious activities caused the village cadre and government officials to come to his house, interrogate him about his religious activities, physically assault him, detain him, and, later, issue a summons and criminal complaint against him. Also in relation to her decision, the IJ at one point touched on Yang’s apparent ability to live outside his village unmolested with a relative. However, the IJ did not address Yang’s testimony that he was not organizing underground church meetings while in hiding. Furthermore, the analysis may change if the IJ concludes, on a renewed consideration of the evidence, that Yang showed past persecution through credible testimony (or credible, corroborated testimony). In that case, the burden would be on the Government, not Yang, to show that Yang could relocate to avoid future persecution and that it would be reasonable to expect Yang to do so. See 8 C.F.R. § 1208.13(b)(l)(ii).
Despite our concerns about the analysis of Yang’s asylum and withholding claims, we agree with the agency that Yang has not shown that it would be more likely than not that he would be tortured if removed to China so as to entitle him to relief under the CAT. See Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003).
For these reasons, we will deny in part the petition for review as it relates to the CAT claim and grant the petition in part as it relates to the analysis of the asylum and withholding claims. Accordingly, we *580will affirm in part and vacate in part the BIA’s decision and remand the matter to the agency for further proceedings.
. Yang previously sought a stay of removal, which we granted.
. As the Government reminds us, we do not consider issues that were not exhausted in agency proceedings. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005). However, we do not agree with the Government that Yang did not exhaust his claim that he showed past persecution or that he has a well-founded fear of future persecution. See R. 19-23. (We note additionally that although Yang clearly exhausted the issues in his brief to the BIA, he may have had a question about whether he should have given the IJ's conditional phrasing of the alternative denial of relief.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471210/ | MEMORANDUM **
Petitioners Enkhbat Arild and Chulu-untsetseeg Shagdar, husband and wife, and their minor child, all natives and citizens of Mongolia, seek review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997), and we deny the petition for review.
The BIA only affirmed the IJ’s credibility finding based on petitioners’ demeanor during their testimony. Petitioners do not raise any challenge to the dispositive demeanor finding in their opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996). Accordingly, we deny the petition.
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/8471212/ | MEMORANDUM **
Jialiu Yang, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s denial on the basis of an adverse credibility finding, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and review de novo due process claims, Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932 (9th Cir.2007). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on the omissions from Yang’s asylum application of his wife’s forced sterilization and the fact that Yang sent letters to three government agencies informing them of his boss’ corruption, see Li, 378 F.3d at 962-64 (adverse credibility finding supported when omissions from asylum application go to heart of claim), and Yang’s insufficient explanation for the omissions, see de Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir.1997) (adverse credibility finding supported when no satisfactory explanation for discrepancies central to claim). In the absence of credible testimony, Yang failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Yang’s CAT claim is based on the same testimony the agency found not credible, and Yang does not point to any other evidence that shows it is more likely than not he would be tortured if returned to China, his CAT claim fails. See id. at 1156-57.
The record does not support Yang’s claim that the IJ violated his due process rights by imposing herself on the proceedings, see Halaim v. INS, 358 F.3d 1128, 1137 (9th Cir.2004), or by placing undue focus on Yang’s role in the eviction of homeowners, see Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring prejudice to prevail on a due process challenge).
PETITION FOR REVIEW DENIED.
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/8471214/ | MEMORANDUM **
Chand Singh Mali, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination. Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination because Mali testified inconsistently regarding the timing of his first arrest and whether he received medical treatment after his detention, and because the doctor’s letter Mali submitted omitted any mention of the electrocution he allegedly suffered during his third arrest. See Li v. Ash*340croft, 378 F.3d 959, 962 (9th Cir.2004). In the absence of credible testimony, Mali has failed to establish that he is eligible for asylum or withholding of removal. See Fatah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Mali’s CAT claim is based on the same evidence the agency found not credible, and he points to no other evidence to show it is more likely than not he would be tortured if returned to India, his CAT claim fails. See id. at 1156-57.
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/8475637/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
Sergio Garcia-Velazco appeals from an Order of the District Court imposing a sentence of 41 months of imprisonment for illegal reentry following deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). For the reasons set forth below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts.
Garcia-Velazco is a Mexican citizen who illegally entered the United States in 1998. On June 19, 2000, Garcia-Velazco was arrested for trafficking heroin, and was subsequently convicted and sentenced to 24 *573months of imprisonment for the crime. Upon his release in October 2001, Garcia-Velazco was deported to Mexico.
Garcia-Velazco illegally reentered the United States in March 2007. In December 2007, Garcia-Velazco was arrested for aggravated assault. While the charge was ultimately dropped, he was indicted for illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). He pled guilty to the indictment on October 9, 2008.
At sentencing, Garcia-Velazco challenged the constitutionality of § 1326(b)(2), which sets a statutory maximum sentence of 20 years for an illegal reentrant who was previously deported from the United States after an aggravated felony conviction. The District Court rejected this argument. He next requested a downward variance based upon a policy disagreement with Guideline § 2L1.2, which sets the base offense level for unlawful reentry at 8, but instructs courts to add 16 levels if the offender was previously deported after being convicted of a drug trafficking felony. The District Court declined to vary from the Guidelines, and used § 2L1.2 to calculate the applicable Guidelines range as 41-51 months of imprisonment. The District Court then considered all of the § 3553(a) factors, and ultimately imposed a sentence of 41 months of imprisonment— which is at the bottom end of the recommended Guidelines range — and three years of supervised release. The District Court entered a Judgment of Conviction on February 4, 2009, and Garcia-Velazco filed a timely notice of appeal to this Court.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We apply a plenary standard of review to a district court’s interpretation of the Sentencing Guidelines, but will review a district court’s findings of fact relevant to the Guidelines for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007). We review the sentence imposed by the District Court under an abuse of discretion standard, and will only vacate the sentence if it is unreasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
III.
Garcia-Velazco first argues that the District Court erred because it did not believe it had the power to reject a provision of the Guidelines based upon a policy disagreement. In making this argument, Garcia-Velazco relies heavily upon the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), in which the Court held that district courts were within their discretion in sentencing to reject, as a policy matter, certain provisions of the Guidelines concerning sentencing for crimes involving crack cocaine. Garcia-Velazco asserts that here, the District Court disagreed as a policy matter with Guideline § 2L1.2, which provides the relevant Guidelines offense level calculations for those convicted of illegal reentry, but that the District Court erroneously believed it was powerless to sentence outside the Guidelines range. We disagree.
This assertion is based upon the District Court’s statement at the sentencing hearing that it was “not in a position to vary from existing law.” App. 89. Garcia-Ve-lazco confuses this relatively straightforward statement of judicial restraint with an expression of policy disagreement with § 2L1.2. The other statements made at the sentencing hearing show that the District Court “acknowledge^] that the range does have merit in its creation. And of course, *574it’s advisory.” App. 90. The District Court went on to note that the purpose of the enhancement was to deter those who had been deported after a serious conviction from illegally reentering the United States. App. 91.
Significantly, at no point during the hearing did the District Court say that it actually disagreed with the enhancement provided for in § 2L1.2, or that it believed that a 16-level enhancement was unduly harsh. To the contrary, the District Court noted that “in keeping with 3553(a), I feel that the following sentence is appropriate.” App. 92. The District Court also noted several times that the Guidelines calculation was merely advisory.
Since there is no evidence from the record that the District Court misunderstood its power to differ from the policy embodied by the § 2L1.2 enhancement, or that the District Court felt that the enhancement was not in accordance with the goals of sentencing as set forth in the § 3553(a) factors, we conclude that the District Court committed no error in refusing to accept Garcia-Velazco’s argument that the 16-level enhancement was unfair as a matter of policy.
IV.
Garcia-Velazco next argues that the District Court’s sentence of 41 months of imprisonment is substantively unreasonable because it is disproportionate to the seriousness of his illegal reentry offense. We disagree.
The District Court made the appropriate calculations under the Guidelines and arrived at a sentencing range of 41 to 51 months. The District Court then heard arguments from both sides regarding whether a variance would be appropriate. Although the District Court acknowledged Garcia-Velazco’s “benign motivation” for reentering the United States, App. 90, it still found that the illegal reentry was “a serious offense and it has to be regarded as such,” App. 91. The District Court went on to state that the sentence imposed must promote respect for the law, adequately deter future criminal acts, and protect the public from further criminal acts by Garcia-Velazco. App. 91. Rejecting Garcia-Velazco’s arguments for downward variance, the District Court underscored the danger to society posed by drug trafficking by foreign nationals, and the need for punishment and deterrence of those involved in such activities.
The record demonstrates that the District Court appropriately considered the relevant § 3553(a) factors in imposing the sentence. The court specifically addressed the nature of the offense, the motivation behind the offense, Garcia-Velazco’s background and family situation, and whether the Guidelines recommendation for illegal reentry was unfairly punitive. The 41-month sentence accurately reflects the goals of sentencing for the crime, and there is nothing in the record which would indicate that the particular facts of Garcia-Velazco’s case are so unique as to require a sentence below the Guidelines range in order to be reasonable. We find no cause to disturb the District Court’s reasoned analysis.
V.
Garcia-Velazeo’s final contention on appeal is that the District Court erred in not striking down 8 U.S.C. § 1326(b)(2) as unconstitutional. That section provides that one convicted of illegal reentry who had previously been deported subsequent to an aggravated felony conviction can face up to 20 years of imprisonment. Garcia-Velazco’s contention is that since this section does not require an admission or jury verdict regarding the circumstances of the prior conviction and deportation, it violates defendants’ Sixth Amendment right to *575have all elements of a crime determined beyond a reasonable doubt by a jury.
Garcia-Velazco acknowledges that there is binding Supreme Court precedent which explicitly upheld the constitutionality of that statute, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but argues that more recent cases, specifically Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), undermine the basis of the Supreme Court’s prior holding such that if the issue were to be decided by the Court today, the statute would be struck down as unconstitutional. Garcia-Velazco also acknowledges, however, that this Court is foreclosed from making a decision on § 1326(b)(2)’s constitutionality unless and until the Supreme Court overrules its prior decision in Almendarez-Torres, and he merely seeks to preserve this issue for future review.
Since the Supreme Court has explicitly held that § 1326(b)(2) is constitutional, and that holding has not been overruled or abrogated by the Court in the intervening period, we hold that the District Court committed no error in applying that section in sentencing Garcia-Velazco. Because Garcia-Velazeo’s challenge to § 1326(b)(2)’s constitutionality is barred by Almendarez-Torres, we need not reach the Government’s argument that Garcia-Velazco waived his right to challenge the statute when he pled guilty.
VI.
For these reasons, we will affirm the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475639/ | *577OPINION
PER CURIAM.
Hua Yang, a native and citizen of the People’s Republic of China, entered the United States without inspection in 2005. The Government later charged him with removability, which he conceded before an Immigration Judge (“IJ”). Through counsel, Yang applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), asserting that he feared returning to China where he faced religious persecution for organizing and participating in an underground Roman Catholic church in his hometown.
The IJ made an adverse credibility determination on the basis that Yang’s testimony was in conflict with his documentary evidence, which the IJ described as “not authenticated.” Because of this “lack of credibility” and “implausibility,” the IJ denied Yang’s asylum application. The IJ also noted, that “even in the alternative, [she] would have to find” that Yang had not shown past persecution. She subsequently concluded that he had not shown that he would be subject to future persecution. On the same reasoning, the IJ denied the withholding claim. She also held that Yang had set forth no facts or circumstances to show that he would be tortured on return to China and denied the CAT claim.
Yang appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Yang’s appeal. The BIA stated that Yang did not challenge the IJ’s factual findings and held that the IJ’s legal conclusions were correct for the reasons given by the IJ. In particular, the BIA held that Yang did not establish a fear of persecution “given discrepancies concerning his relationship with a government sanctioned church.” The BIA also especially noted that Yang did not “submit documentation to corroborate his claim that fellow underground church members are being persecuted by the Chinese government.”
Yang petitions for review of the BIA’s decision.1 We have jurisdiction over Yang’s petition under 8 U.S.C. § 1252(a). In reviewing the BIA’s and IJ’s decisions, see Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004), we consider questions of law de novo,2 See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, like an adverse credibility determination, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be afforded substantial deference, so long as the finding is supported by sufficient, cogent reasons. See id. at 434. We evaluate whether the credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen, 376 F.3d at 223.
We note that before the enactment of the REAL ID Act of 2005, an adverse credibility determination could be based on inconsistencies only if the inconsistencies went to the heart of the claim. See Chuk-*578wu v. Attorney Gen. of the United States, 484 F.3d 185, 189 (3d Cir.2007). However, a new REAL ID Act standard, which provides that “credibility determinations may be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,’ ” applies to Yang’s case because he filed his application for relief from removal after May 11, 2005. See id. (quoting the REAL ID Act); see also Kaita v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir.2008). Although we have not yet spoken on what the change in the law means, we conclude that the credibility finding in this case is suspect under the pre-REAL ID Act standard and any stricter standard of review that follows from the REAL ID Act. See, e.g., Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
First, we are perplexed by the BIA’s statement that Yang did not challenge the IJ’s factual findings. That statement is simply not correct because, among other things, Yang’s appeal brief to the BIA plainly challenges the IJ’s core adverse credibility findings. See R. 16-17.
Second, in dismissing the appeal, the BIA specifically relied on the IJ’s reasoning that Yang’s testimony about his underground church activities was contradicted by the letter that he submitted from the Bishop of the Catholic Church in the Mawei district. However, the IJ’s conclusion that the evidence in the letter “is completely and totally different from the testimony” is clearly erroneous. At the immigration hearing, Yang was asked whether he attended the government-approved Catholic Church in the Mawei district. He stated that he was baptized there, but that he regularly attended the underground churches in his hometown. The IJ disbelieved that testimony, pointing to the Bishop’s letter which, the IJ insisted, indicated that Yang “frequently attended mass there [in the Catholic Church in the Mawei district].” However, the letter indicates only that Yang was a good member of the Catholic church in his hometown and not that he was a good member of the Bishop’s church in the Mawei district, which Yang testified was far away from his village. Throughout the hearing, Yang consistently testified that he regularly attended underground masses that he organized in his hometown.
In regard to the letter, the IJ also questioned Yang about why the Bishop indicated “that the government of the People’s Republic of China does not provide religious freedom to individuals in China.” The IJ found Yang’s response inadequate. First, the IJ mischaracterized the Bishop’s statement a bit. In context, it was that “[a]lthough China is not a free country for religious belief, [Yang] was enthusiastic in the Gongjiao activities.” The statement was not inconsistent with Yang’s account nor is it in conflict with the 2006 International Religious Freedom Report that the IJ considered. As Yang conceded, the Bishop may have been taking a chance in including such a statement in a letter. And the IJ, in determining whether a letter from the Bishop would include a comment on religious freedom in China, could “draw inferences based on common sense and logic as well as on personal experience and background knowledge gained from exposure to certain situations,” Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir.2003). However, the IJ did not do this so much as take Yang to task for not being able to articulate the Bishop’s reason for including the comment about religious freedom.
The IJ also faulted Yang’s testimony for its lack of details. It has been said that “details matter.” Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir.2008). However, at the hearing, Yang plainly and consistently described his activities, including the following: that he and his family orga*579nized masses in his house; that he distributed literature in the village; and that, as a result of these activities in the village, the underground church grew. Moreover, he also described how he escaped from the village office where he was detained, and how, with the assistance of his uncle, he escaped to a relative’s house and then to the United States. While he did not provide much information about where his parents have been living in hiding, the lack of details alone does not support the adverse credibility determination in this case. Had the IJ not understood the Bishop’s letter as contradicting the testimony, it is unclear if the IJ would have made the adverse credibility finding.
Furthermore, it was “in light of the [perceived] contradictory testimony” that the IJ gave little weight to a summons for him to appear at the police station and a subpoena for him to appear in court. As the IJ acknowledged, the summons and the subpoena were sent to a forensic lab and the Forensic Document Examiner confirmed that the forms were authentic; however, the Examiner could make no further conclusions regarding the document’s authenticity without specimens of the handwriting and authenticating seals of the author.
The IJ also noted that Yang did not coiToborate the portion of his claim involving hiding with relatives and his testimony about other underground church members being questioned. However, it is not clear if the IJ would have required corroboration in the absence of her mistake about the contradictions in the testimony. Compare Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (holding that an alien’s credible testimony may satisfy the burden of proof for a claim for asylum or other relief from removal) with Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (allowing the agency to require even “otherwise-credible applicants to supply corroborating evidence in order to meet their burden of proof’).
Finally, we address the IJ’s summary alternative conclusion (or conditional and alternative conclusion) that Yang had not carried his burden of showing that he suffered past persecution or that he would face future persecution. In that evaluation, the IJ acknowledged, but simply did not address, Yang’s testimony that his religious activities caused the village cadre and government officials to come to his house, interrogate him about his religious activities, physically assault him, detain him, and, later, issue a summons and criminal complaint against him. Also in relation to her decision, the IJ at one point touched on Yang’s apparent ability to live outside his village unmolested with a relative. However, the IJ did not address Yang’s testimony that he was not organizing underground church meetings while in hiding. Furthermore, the analysis may change if the IJ concludes, on a renewed consideration of the evidence, that Yang showed past persecution through credible testimony (or credible, corroborated testimony). In that case, the burden would be on the Government, not Yang, to show that Yang could relocate to avoid future persecution and that it would be reasonable to expect Yang to do so. See 8 C.F.R. § 1208.13(b)(l)(ii).
Despite our concerns about the analysis of Yang’s asylum and withholding claims, we agree with the agency that Yang has not shown that it would be more likely than not that he would be tortured if removed to China so as to entitle him to relief under the CAT. See Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003).
For these reasons, we will deny in part the petition for review as it relates to the CAT claim and grant the petition in part as it relates to the analysis of the asylum and withholding claims. Accordingly, we *580will affirm in part and vacate in part the BIA’s decision and remand the matter to the agency for further proceedings.
. Yang previously sought a stay of removal, which we granted.
. As the Government reminds us, we do not consider issues that were not exhausted in agency proceedings. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005). However, we do not agree with the Government that Yang did not exhaust his claim that he showed past persecution or that he has a well-founded fear of future persecution. See R. 19-23. (We note additionally that although Yang clearly exhausted the issues in his brief to the BIA, he may have had a question about whether he should have given the IJ's conditional phrasing of the alternative denial of relief.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475642/ | OPINION
AMBRO, Circuit Judge.
Kenneth A. Evans (“Evans”) was convicted in the Eastern District of Pennsylvania of three counts of filing false tax returns (in violation of 26 U.S.C. § 7206(1)) and two counts of tax evasion (in violation of 26 U.S.C. § 7201). The District Court sentenced him to 36 months’ imprisonment. He now challenges his conviction and sentence.1 We affirm both.
I. Background
Because we write solely for the parties, we will recite only those facts necessary to our disposition. Evans, a sales representative, stopped filing tax returns in 1999. In January 2001, he filed a civil suit in federal court against the Government re*582questing a full refund of his 1999 federal income tax. Evans claimed that no legal authority required him to pay income tax on his wages, the filing of a tax return would violate his Fifth Amendment right against self-incrimination, and the Sixteenth Amendment does not grant the Government authority to tax directly his wages without apportionment. In June 2001, the District Court found in the Government’s favor on summary judgment. The Court, noting that these types of tax protest claims were appearing with some frequency, rejected in detail Evans’ claims. Evans appealed, and we affirmed the District Court, noting the clear precedent that explicitly rejects Evans’ arguments. See Evans v. United States, No. 01-3161, 32 Fed.Appx. 31 (3d Cir. Mar.26, 2002) (unpublished). We ordered Evans to pay $4,000 as a sanction for filing a frivolous appeal. The United States Supreme Court denied Evans’ request for a writ of certiorari.
In August 2001, the IRS sent Evans a report regarding Evans’ failure to file his 1999 return. At a meeting requested by Evans, IRS agents Vastardis and Burton informed Evans that his earnings were taxable income and Evans was required to file a return to obtain a refund for 1999. The meeting was recorded at Evans’ request.
After this meeting, Evans filed a late tax return for the year 2000. He listed his income as zero, yet the Form W-2 wage and tax statement submitted by his employer showed he was paid over $55,000 in wages in 2000. Evans again reported zero income in his 2001 tax return. The corresponding W-2 showed he earned over $77,000 in 2001. In his 2000 and 2001 tax returns, Evans sought a refund of all taxes that had been withheld from his paychecks. The IRS denied these refund claims.
In January 2002, Evans submitted an IRS Form W-4 to his employer claiming he was exempt from withholding because he had no tax liability. His employer complied with this request and did not withhold federal taxes from 2002 through 2004. Evans did not file a tax return for the years 2002 and 2003.
In March 2003, Evans filed a second civil suit against the Government for a refund of federal income tax he paid in the 2000 and 2001 tax years. The District Court held a hearing and allowed Evans to argue his position. In granting judgment for the Government and rejecting Evans’ arguments, the District Court noted that, instead of paying the sanctions imposed by our Court, Evans chose to burden the federal courts with yet another frivolous suit. The District Court imposed an additional $1,000 sanction.
In November 2004, the IRS wrote to Evans regarding his failure to file returns, and Evans met with IRS Agents Michael Taibi and Susan Hough. This meeting also was recorded at Evans’ request. Evans argued that he was not required to file returns because he had no taxable income. Agent Taibi communicated with Evans’ employer to request they begin withholding federal income tax. Taibi then referred the matter for criminal investigation.
In January 2005, Evans submitted to his employer a form “W-4E,” captioned “Exemption from Withholding,” in which he claimed he was exempt from withholding. The company did not honor the exemption request, as the “form” was not Government-issued. Evans filed a tax return for 2004 stating that he had no income, as he had done in his 2000 and 2001 returns.
A grand jury indicted Evans for filing false tax returns in the years 2000, 2001, and 2004, and tax evasion for the years 2002 and 2003. At trial, the Government *583presented testimony of several IRS agents regarding Evans’ filing history. The agents testified about the meetings with Evans in 2001 and 2004, and a recording was played of a December 2005 interview between Evans and an IRS agent with the criminal investigation division. Evans’ Forms W-4 and Forms W-2 were introduced, and representatives of his employer described his withholding and wage history. Evidence was presented of the rejection of Evans’ position by two District Court judges and the imposition of sanctions by this Court for filing a frivolous appeal. The Government also introduced evidence of Evans’ tax-protestor status and activities, including postings from Evans’ website regarding his tax beliefs and e-mails between Evans and other tax protestors.
Evans testified at length on his own behalf. He presented his interpretation of the case law, Tax Code, and IRS regulations. Evans claimed that Agent Vastar-dis told him at the 2001 meeting that a filer must declare that he had no income in order to claim a refund, and that filing a return was voluntary and not mandatory. Evans played selected portions of the tape of this meeting, and introduced numerous exhibits, including attachments to his W-4s.
The jury convicted Evans on all counts, and this appeal followed his sentencing.
II. Discussion
Evans makes four arguments on appeal: (1) the District Court erred by not admitting attachments to Evans’ Form W-4s contemporaneously under Federal Rule of Evidence 106; (2) the evidence presented at trial was insufficient to establish Evans willfully failed to file tax returns and filed false tax returns; (3) the District Court erred in its jury charge; and (4) it relied on an impermissible factor in varying upward from the advisory Guidelines range.
A. Evidentiary Challenge
The prosecution introduced into evidence the “Employee’s Withholding Allowance Certificate,” IRS Form W-4, completed by Evans in the years 2002, 2003, and 2004. The District Court denied Evans’ motion in limine to admit letters and a videotape Evans attached to his W-4s, including letters to his employer explaining his view that he had no income tax liability and instructing his employer not to withhold any taxes. The District Court’s decision to admit or exclude evidence is reviewed for abuse of discretion. United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir.2001).
Evans claims that the District Court’s denial of his motion was an abuse of discretion under Federal Rule of Evidence 106, which provides that
[w]hen a wilting or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
This codification of the doctrine of completeness guards against the potential for evidence to be misleading when presented out of context. Admission of additional evidence is compelled “if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.” United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984). Evans asserts that failure to include his writings and the video with the Form W-4s gave the jury a distorted and misleading view, as Evans incorporated them specifically to provide his reasoning for completing the forms in the manner he did.
The District Court found that a Form W-4 is a distinct and complete Govern*584ment-issued document, and the mere fact that Evans appended writings or videos did not render these additional submissions part of the Form W-4. The District Court also concluded that the Form W-4 alone was not so misleading or unfairly prejudicial as to warrant application of Rule 106.
Even were we to assume this was an abuse of discretion, any conceivable error was harmless. Under our traditional harmless error standard, a non-constitutional error is harmless when it is “highly probable that the error did not contribute to the judgment.” United States v. Gambone, 314 F.3d 163, 177 (3d Cir. 2003) (internal quotation marks and citation omitted) (emphasis in original). “High probability requires that the court possess a sure conviction that the error did not prejudice the defendant.” Id. (internal quotation marks and citation omitted).
Here, one of the letters attached to a Form W-4 was discussed in detail during cross-examination of Evans’ employer’s corporate counsel. (See Gov’t App. 170-74.) Moreover, Evans testified about various letters he wrote to the IRS containing largely the same arguments he made in letters attached to the Form W-4s. Evans opined at length at trial about his reasons for completing the Form W-4s as he did. Therefore, any error was harmless.
B. Sufficiency of the Evidence
Evans argues that the trial evidence was insufficient to show that he willfully failed to file tax returns and willfully filed false tax returns.2 In support of this contention, Evans contends that the Government did not prove willfulness, an element of the five counts in the indictment. We are unpersuaded.
“Willfulness requires the voluntary, intentional violation of a known legal duty as a condition precedent to criminal liability.” United States v. McKee, 506 F.3d 225, 236 (3d Cir.2007) (citing Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)). This element “protects the average citizen from criminal prosecution for innocent mistakes in filing tax forms that may result from nothing more than negligence or the complexity of the tax laws.” Id. Willfulness is negated by a defendant’s good faith belief that he is not violating any laws. Cheek, 498 U.S. at 202, 111 S.Ct. 604. Once raised as a defense, the burden is on the Government to prove the defendant did not have a good faith belief. Id.
Viewing the evidence in the light most favorable to the Government, the element of willfulness is satisfied here by the judgments of two District Courts and our Court in the civil cases brought by Evans, communications to Evans by IRS agents, Evans’ failure to file, evidence of his tax protest activities, and his knowledge of the conviction and sentencing of another tax protestor. Numerous authorities, including our Court, informed Evans of his duty to file a return and treat his wages as income. This is not a case of a good faith misunderstanding of a tax law provision. This is a case where the defendant knew and understood the law. Someone who knows the law and disagrees with it is not someone who in good faith believes the law does not apply to him.
*585C. Jury Instructions
Evans next challenges several of the District Court’s jury instructions. When a party timely objects to jury instructions, “[w]e exercise plenary review to determine whether jury instructions misstated the applicable law, but in the absence of a misstatement we review for abuse of discretion.” Cooper Distrib. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir.1999). However, where a party claiming error in a jury instruction “did not make a timely objection, we review for plain error.” Id. We will reverse if that error was “fundamental and highly prejudicial, such that the instructions failed to provide the jury with adequate guidance and our refusal to consider the issue would result in a miscarriage of justice.” Id. (internal quotation marks and citations omitted).3
Where a district court denies a requested jury instruction, we will reverse “only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.” United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir.1992). Jury instructions are to be read as a whole. United States v. Flores, 454 F.3d 149, 157 (3d Cir.2006). “It is well-settled that the trial judge retains discretion to determine the language of the jury charge ... [s]o long as the court conveys the required meaning,” and the court is under no obligation to use language proffered by the defendant. Id. at 161.
First, Evans challenges the District Court’s use of the word “genuine” when it instructed the jury that a defendant’s disagreement with a legal duty, even if genuine, does not provide a good faith defense. Read in context, the District Court accurately instructed the jury on the issue of good faith in accordance with Supreme Court and Third Circuit precedent.
Relatedly, Evans argues that the District Court erred in refusing to give his proposed good faith and willfulness instructions and a theory-of-the-defense instruction. However, the Court’s explanation of willfulness in the jury charge substantially covered the relevant points and allowed Evans to argue his theory of the case. Therefore, the Court’s refusal to include specific language or instruct on particular legal arguments requested by Evans was not an abuse of discretion.
Evans also claims that the District Court erroneously informed the jury that willfulness does not require that Evans knew his conduct was in violation of the law. Although Evans is correct in noting that the Court misspoke on one occasion while giving the jury instructions, the mistake was corrected when the Court accurately stated repeatedly that willfulness required proof that Evans knew his conduct violated the law, and on numerous occasions informed the jury that willfulness required violation of a “known legal duty.” Given the instructions in their entirety, this one misstatement could not have confused the jury. Therefore, the jury was properly charged on the willfulness element.
Evans’ remaining challenges to the jury charge, which include a challenge to the state-of-mind instruction and a reference to income under the Tax Code, are without merit. Viewing the jury instructions in their entirety and in context, the District Court did not abuse its discretion.
*586D. Sentencing
Finally, Evans argues that the District Court improperly relied on the two civil tax suits filed by Evans against the United States in its consideration of the 18 U.S.C. § 3558(a) factors. This is Evans’ only complaint regarding his sentencing; he does not challenge the calculation of the Guidelines range or the Court’s consideration of the § 3553(a) factors in general.
We review the District Court’s sentence for reasonableness under an abuse of discretion standard. United States v. Tomko, 562 F.3d 558, 564, 567 (3d Cir. 2009) (en banc). “Where, as here, a district court decides to vary from the Guidelines’ recommendations, we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. at 561 (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).
The Guidelines range was 15 to 21 months. The District Court imposed an above-Guidelines sentence of 36 months. It discussed at length the factors set forth at 18 U.S.C. § 3553(a). We do not think it was improper for the Court, in evaluating those factors (including the nature and circumstances of the offense), to consider that, despite several courts’ unequivocal rejection of Evans’ claims that his income was not subject to taxation, Evans continued to violate the law.4 The Court noted Evans’ disrespect for the court process, his disdainful interactions with IRS agents, the need for him genuinely to appreciate the authority of the law, and the need to deter the public. We have no hesitancy in concluding that it rationally and meaningfully considered the § 3553(a) factors, and the sentence of 36 months was reasonable in this case.
* * * :|: * X
For these reasons, we affirm both Evans’ conviction and sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. " 'We apply a particularly deferential standard of review when deciding whether a jury verdict rests on legally sufficient evidence.’ ” United States v. Soto, 539 F.3d 191, 193-94 (3d Cir.2008) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). We will sustain the verdict if, viewing the evidence in the light most favorable to the Government, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' ” Id. at 194 {quoting Dent, 149 F.3d at 187).
. Evans objected to the Court’s instructions on willfulness and the Court's refusal to give certain of Evans' proposed instructions. Therefore, these instructions are subject to harmless error review. Evans did not preserve his objection to his proposed theory of the defense instruction, and he concedes this issue is reviewed for plain error.
. Evans' allegation that this violated his First Amendment rights is meritless. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471217/ | MEMORANDUM **
Celerino Velaseo-Flores, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Velaseo-Flores’ motion to reopen as untimely because the motion was filed more than two years after the BIA’s December 16, 2003, order dismissing his appeal, see 8 C.F.R. § 1003.2(c)(2), and Ve-lasco-Flores failed to establish the due *342diligence required to warrant tolling of the motions deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).
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/8471219/ | *343MEMORANDUM **
Weiqi Jin and his wife, natives and citizens of China, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their motion for reconsideration. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), and we grant in part and dismiss in part the petition for review.
The agency abused its discretion when it denied Jin’s motion to reconsider, because the IJ failed to balance favorable factors against negative factors when denying asylum in the exercise of discretion. See Grulla v. Gonzales, 498 F.3d 911, 915-16 (9th Cir.2007) (agency abuses its discretion when in denying relief it fails to properly consider all relevant factors and explain how each figures in the balance); see also 8 C.F.R. § 1003.2(b)(1) (motion to reconsider identifies errors of law or fact in the agency’s prior decision).
To the extent Jin challenges the BIA’s November 29, 2006 order denying his second motion to reconsider, the court lacks jurisdiction because Jin did not file a petition for review of that decision. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
The parties shall each bear their own costs on appeal.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part; 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/8471221/ | MEMORANDUM **
Gurpreet Khurana, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant the petition for review and remand.
The BIA abused its discretion when it concluded that Khurana failed to exercise the due diligence required for equitable tolling of the 90-day motions deadline. See Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir.2007) (due diligence where petitioner repeatedly sought new counsel in pursuit of relief). Khurana timely retained current counsel after her original petition for review was denied, and filed the motion to reopen within 90 days of her counsel receiving the administrative record and reviewing it with Khurana. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (motions deadline tolled until petitioner meets with new counsel and reviews file).
We disagree with the BIA’s conclusion that Khurana’s counsels before the IJ and BIA were sufficient. See Mohammed, 400 F.3d at 793 (alien must demonstrate constitutionally deficient counsel and prejudice to prevail on an ineffective assistance *345of counsel claim). Khurana’s motion to reopen included eight sworn declarations from colleagues, including her attorney and treating physician, detailing her two detentions, beatings, and rape by authorities in India, none of which were requested by her counsel before the IJ. Khurana also submitted medical evidence of post-partum depression, available at the time of the hearing, but neither requested nor obtained by counsel, that may explain some of the inconsistencies in her testimony cited by the IJ. Khurana also submitted a letter from her gurdawara that explains the circumstances and timing of her marriage ceremony.
This failure to effectively document and present the asylum claim before the IJ, and failure of subsequently retained counsel to identify the ineffective assistance of counsel, rendered Khurana’s removal proceedings so fundamentally unfair that the she was prevented from reasonably presenting her case, see Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004), and may have affected the outcome of Khurana’s removal proceeding, see Itunibarria, 321 F.3d at 899-900.
We therefore grant the petition for review, and remand to the BIA.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475641/ | OPINION
AMBRO, Circuit Judge.
Kenneth A. Evans (“Evans”) was convicted in the Eastern District of Pennsylvania of three counts of filing false tax returns (in violation of 26 U.S.C. § 7206(1)) and two counts of tax evasion (in violation of 26 U.S.C. § 7201). The District Court sentenced him to 36 months’ imprisonment. He now challenges his conviction and sentence.1 We affirm both.
I. Background
Because we write solely for the parties, we will recite only those facts necessary to our disposition. Evans, a sales representative, stopped filing tax returns in 1999. In January 2001, he filed a civil suit in federal court against the Government re*582questing a full refund of his 1999 federal income tax. Evans claimed that no legal authority required him to pay income tax on his wages, the filing of a tax return would violate his Fifth Amendment right against self-incrimination, and the Sixteenth Amendment does not grant the Government authority to tax directly his wages without apportionment. In June 2001, the District Court found in the Government’s favor on summary judgment. The Court, noting that these types of tax protest claims were appearing with some frequency, rejected in detail Evans’ claims. Evans appealed, and we affirmed the District Court, noting the clear precedent that explicitly rejects Evans’ arguments. See Evans v. United States, No. 01-3161, 32 Fed.Appx. 31 (3d Cir. Mar.26, 2002) (unpublished). We ordered Evans to pay $4,000 as a sanction for filing a frivolous appeal. The United States Supreme Court denied Evans’ request for a writ of certiorari.
In August 2001, the IRS sent Evans a report regarding Evans’ failure to file his 1999 return. At a meeting requested by Evans, IRS agents Vastardis and Burton informed Evans that his earnings were taxable income and Evans was required to file a return to obtain a refund for 1999. The meeting was recorded at Evans’ request.
After this meeting, Evans filed a late tax return for the year 2000. He listed his income as zero, yet the Form W-2 wage and tax statement submitted by his employer showed he was paid over $55,000 in wages in 2000. Evans again reported zero income in his 2001 tax return. The corresponding W-2 showed he earned over $77,000 in 2001. In his 2000 and 2001 tax returns, Evans sought a refund of all taxes that had been withheld from his paychecks. The IRS denied these refund claims.
In January 2002, Evans submitted an IRS Form W-4 to his employer claiming he was exempt from withholding because he had no tax liability. His employer complied with this request and did not withhold federal taxes from 2002 through 2004. Evans did not file a tax return for the years 2002 and 2003.
In March 2003, Evans filed a second civil suit against the Government for a refund of federal income tax he paid in the 2000 and 2001 tax years. The District Court held a hearing and allowed Evans to argue his position. In granting judgment for the Government and rejecting Evans’ arguments, the District Court noted that, instead of paying the sanctions imposed by our Court, Evans chose to burden the federal courts with yet another frivolous suit. The District Court imposed an additional $1,000 sanction.
In November 2004, the IRS wrote to Evans regarding his failure to file returns, and Evans met with IRS Agents Michael Taibi and Susan Hough. This meeting also was recorded at Evans’ request. Evans argued that he was not required to file returns because he had no taxable income. Agent Taibi communicated with Evans’ employer to request they begin withholding federal income tax. Taibi then referred the matter for criminal investigation.
In January 2005, Evans submitted to his employer a form “W-4E,” captioned “Exemption from Withholding,” in which he claimed he was exempt from withholding. The company did not honor the exemption request, as the “form” was not Government-issued. Evans filed a tax return for 2004 stating that he had no income, as he had done in his 2000 and 2001 returns.
A grand jury indicted Evans for filing false tax returns in the years 2000, 2001, and 2004, and tax evasion for the years 2002 and 2003. At trial, the Government *583presented testimony of several IRS agents regarding Evans’ filing history. The agents testified about the meetings with Evans in 2001 and 2004, and a recording was played of a December 2005 interview between Evans and an IRS agent with the criminal investigation division. Evans’ Forms W-4 and Forms W-2 were introduced, and representatives of his employer described his withholding and wage history. Evidence was presented of the rejection of Evans’ position by two District Court judges and the imposition of sanctions by this Court for filing a frivolous appeal. The Government also introduced evidence of Evans’ tax-protestor status and activities, including postings from Evans’ website regarding his tax beliefs and e-mails between Evans and other tax protestors.
Evans testified at length on his own behalf. He presented his interpretation of the case law, Tax Code, and IRS regulations. Evans claimed that Agent Vastar-dis told him at the 2001 meeting that a filer must declare that he had no income in order to claim a refund, and that filing a return was voluntary and not mandatory. Evans played selected portions of the tape of this meeting, and introduced numerous exhibits, including attachments to his W-4s.
The jury convicted Evans on all counts, and this appeal followed his sentencing.
II. Discussion
Evans makes four arguments on appeal: (1) the District Court erred by not admitting attachments to Evans’ Form W-4s contemporaneously under Federal Rule of Evidence 106; (2) the evidence presented at trial was insufficient to establish Evans willfully failed to file tax returns and filed false tax returns; (3) the District Court erred in its jury charge; and (4) it relied on an impermissible factor in varying upward from the advisory Guidelines range.
A. Evidentiary Challenge
The prosecution introduced into evidence the “Employee’s Withholding Allowance Certificate,” IRS Form W-4, completed by Evans in the years 2002, 2003, and 2004. The District Court denied Evans’ motion in limine to admit letters and a videotape Evans attached to his W-4s, including letters to his employer explaining his view that he had no income tax liability and instructing his employer not to withhold any taxes. The District Court’s decision to admit or exclude evidence is reviewed for abuse of discretion. United States v. Mathis, 264 F.3d 321, 326-27 (3d Cir.2001).
Evans claims that the District Court’s denial of his motion was an abuse of discretion under Federal Rule of Evidence 106, which provides that
[w]hen a wilting or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
This codification of the doctrine of completeness guards against the potential for evidence to be misleading when presented out of context. Admission of additional evidence is compelled “if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.” United States v. Soures, 736 F.2d 87, 91 (3d Cir. 1984). Evans asserts that failure to include his writings and the video with the Form W-4s gave the jury a distorted and misleading view, as Evans incorporated them specifically to provide his reasoning for completing the forms in the manner he did.
The District Court found that a Form W-4 is a distinct and complete Govern*584ment-issued document, and the mere fact that Evans appended writings or videos did not render these additional submissions part of the Form W-4. The District Court also concluded that the Form W-4 alone was not so misleading or unfairly prejudicial as to warrant application of Rule 106.
Even were we to assume this was an abuse of discretion, any conceivable error was harmless. Under our traditional harmless error standard, a non-constitutional error is harmless when it is “highly probable that the error did not contribute to the judgment.” United States v. Gambone, 314 F.3d 163, 177 (3d Cir. 2003) (internal quotation marks and citation omitted) (emphasis in original). “High probability requires that the court possess a sure conviction that the error did not prejudice the defendant.” Id. (internal quotation marks and citation omitted).
Here, one of the letters attached to a Form W-4 was discussed in detail during cross-examination of Evans’ employer’s corporate counsel. (See Gov’t App. 170-74.) Moreover, Evans testified about various letters he wrote to the IRS containing largely the same arguments he made in letters attached to the Form W-4s. Evans opined at length at trial about his reasons for completing the Form W-4s as he did. Therefore, any error was harmless.
B. Sufficiency of the Evidence
Evans argues that the trial evidence was insufficient to show that he willfully failed to file tax returns and willfully filed false tax returns.2 In support of this contention, Evans contends that the Government did not prove willfulness, an element of the five counts in the indictment. We are unpersuaded.
“Willfulness requires the voluntary, intentional violation of a known legal duty as a condition precedent to criminal liability.” United States v. McKee, 506 F.3d 225, 236 (3d Cir.2007) (citing Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)). This element “protects the average citizen from criminal prosecution for innocent mistakes in filing tax forms that may result from nothing more than negligence or the complexity of the tax laws.” Id. Willfulness is negated by a defendant’s good faith belief that he is not violating any laws. Cheek, 498 U.S. at 202, 111 S.Ct. 604. Once raised as a defense, the burden is on the Government to prove the defendant did not have a good faith belief. Id.
Viewing the evidence in the light most favorable to the Government, the element of willfulness is satisfied here by the judgments of two District Courts and our Court in the civil cases brought by Evans, communications to Evans by IRS agents, Evans’ failure to file, evidence of his tax protest activities, and his knowledge of the conviction and sentencing of another tax protestor. Numerous authorities, including our Court, informed Evans of his duty to file a return and treat his wages as income. This is not a case of a good faith misunderstanding of a tax law provision. This is a case where the defendant knew and understood the law. Someone who knows the law and disagrees with it is not someone who in good faith believes the law does not apply to him.
*585C. Jury Instructions
Evans next challenges several of the District Court’s jury instructions. When a party timely objects to jury instructions, “[w]e exercise plenary review to determine whether jury instructions misstated the applicable law, but in the absence of a misstatement we review for abuse of discretion.” Cooper Distrib. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir.1999). However, where a party claiming error in a jury instruction “did not make a timely objection, we review for plain error.” Id. We will reverse if that error was “fundamental and highly prejudicial, such that the instructions failed to provide the jury with adequate guidance and our refusal to consider the issue would result in a miscarriage of justice.” Id. (internal quotation marks and citations omitted).3
Where a district court denies a requested jury instruction, we will reverse “only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.” United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir.1992). Jury instructions are to be read as a whole. United States v. Flores, 454 F.3d 149, 157 (3d Cir.2006). “It is well-settled that the trial judge retains discretion to determine the language of the jury charge ... [s]o long as the court conveys the required meaning,” and the court is under no obligation to use language proffered by the defendant. Id. at 161.
First, Evans challenges the District Court’s use of the word “genuine” when it instructed the jury that a defendant’s disagreement with a legal duty, even if genuine, does not provide a good faith defense. Read in context, the District Court accurately instructed the jury on the issue of good faith in accordance with Supreme Court and Third Circuit precedent.
Relatedly, Evans argues that the District Court erred in refusing to give his proposed good faith and willfulness instructions and a theory-of-the-defense instruction. However, the Court’s explanation of willfulness in the jury charge substantially covered the relevant points and allowed Evans to argue his theory of the case. Therefore, the Court’s refusal to include specific language or instruct on particular legal arguments requested by Evans was not an abuse of discretion.
Evans also claims that the District Court erroneously informed the jury that willfulness does not require that Evans knew his conduct was in violation of the law. Although Evans is correct in noting that the Court misspoke on one occasion while giving the jury instructions, the mistake was corrected when the Court accurately stated repeatedly that willfulness required proof that Evans knew his conduct violated the law, and on numerous occasions informed the jury that willfulness required violation of a “known legal duty.” Given the instructions in their entirety, this one misstatement could not have confused the jury. Therefore, the jury was properly charged on the willfulness element.
Evans’ remaining challenges to the jury charge, which include a challenge to the state-of-mind instruction and a reference to income under the Tax Code, are without merit. Viewing the jury instructions in their entirety and in context, the District Court did not abuse its discretion.
*586D. Sentencing
Finally, Evans argues that the District Court improperly relied on the two civil tax suits filed by Evans against the United States in its consideration of the 18 U.S.C. § 3558(a) factors. This is Evans’ only complaint regarding his sentencing; he does not challenge the calculation of the Guidelines range or the Court’s consideration of the § 3553(a) factors in general.
We review the District Court’s sentence for reasonableness under an abuse of discretion standard. United States v. Tomko, 562 F.3d 558, 564, 567 (3d Cir. 2009) (en banc). “Where, as here, a district court decides to vary from the Guidelines’ recommendations, we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. at 561 (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)).
The Guidelines range was 15 to 21 months. The District Court imposed an above-Guidelines sentence of 36 months. It discussed at length the factors set forth at 18 U.S.C. § 3553(a). We do not think it was improper for the Court, in evaluating those factors (including the nature and circumstances of the offense), to consider that, despite several courts’ unequivocal rejection of Evans’ claims that his income was not subject to taxation, Evans continued to violate the law.4 The Court noted Evans’ disrespect for the court process, his disdainful interactions with IRS agents, the need for him genuinely to appreciate the authority of the law, and the need to deter the public. We have no hesitancy in concluding that it rationally and meaningfully considered the § 3553(a) factors, and the sentence of 36 months was reasonable in this case.
* * * :|: * X
For these reasons, we affirm both Evans’ conviction and sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. " 'We apply a particularly deferential standard of review when deciding whether a jury verdict rests on legally sufficient evidence.’ ” United States v. Soto, 539 F.3d 191, 193-94 (3d Cir.2008) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). We will sustain the verdict if, viewing the evidence in the light most favorable to the Government, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' ” Id. at 194 {quoting Dent, 149 F.3d at 187).
. Evans objected to the Court’s instructions on willfulness and the Court's refusal to give certain of Evans' proposed instructions. Therefore, these instructions are subject to harmless error review. Evans did not preserve his objection to his proposed theory of the defense instruction, and he concedes this issue is reviewed for plain error.
. Evans' allegation that this violated his First Amendment rights is meritless. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475652/ | OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on an appeal from an order for summary judgment entered in favor of the defendant-appellee Huntington National Bank (“Huntington”) on January 14, 2009, in this action that plaintiff-appellant Martik Brothers, Inc. (“Martik”) brought against Huntington. See Martik Bros., Inc. v. Huntington Nat’l Bank, 2009 WL 89282 (W.D.Pa. Jan.14, 2009) (“Martik”). The action arose from Kiebler Slippery Rock, LLC’s (“Kiebler”) development of a student housing project (“Project”) near Slippery Rock University in Slippery Rock Township, Butler County, Pennsylvania. Huntington financed the Project in accordance with a Construction Loan Agreement with Kiebler dated October 10, 2006, in which Huntington agreed to provide up to $29,521,368 for construction to be secured by two mortgages on the property on which Kiebler was constructing the Project. Martik was Kiebler’s general contractor on the Project pursuant to two contracts it entered into with Kiebler on or *603about August 29, 2006. Though Huntington made its loan to Kiebler and not to Martik, it disbursed proceeds from the loan by wire transfer directly to Martik upon receipt of Martik’s approved draws as work on the Project progressed.1
During the course of the construction financial difficulties arose on the Project that resulted in Huntington not making payments on Martik’s final draw in September 2007. Consequently, Martik initiated arbitration proceedings against Kiebler in accordance with a standard arbitration provision in the construction contracts, and in those proceedings Mar-tik obtained an arbitration award against Kiebler for $2,687,781.38, plus interest and costs to cover the shortfall.2 Kie-bler, however, is in bankruptcy and has not paid the award. Martik did not have a contract with Huntington and thus ordinarily Martik, as it recognizes, would not be able to look to Huntington for payment on its contracts with Kie-bler even though Huntington had been making payments directly to Martik for its work on the Project.
Nevertheless Martik believes that Huntington is liable to it for an amount equal to the arbitration award as a consequence of certain representations that Huntington made to Martik. In this regard it is undisputed for purposes of these summary judgment proceedings that Martik expressed its concerns about payment to Richard Dexter, a Huntington construction risk manager, on three occasions.3 The first of the occasions followed a meeting regarding the Project in June 2007 at which Kiebler, Martik and Huntington were represented. Prior to that meeting Huntington had for a number of months been aware of financial difficulties on the Project and the meeting was held to address that situation. Following the meeting, Frank Martik, Martik’s representative at the meeting, asked Dexter who was present with another of Huntington’s representatives, whether Martik would have anything to worry about with respect to payment to it. Dexter said “No. There’s nothing to worry about.” App. at 171. The other Huntington representative present did not contradict Dexter on this point. Notwithstanding Dexter’s assurances to Frank Martik on the day of the meeting, Frank Martik obviously was uneasy, as it later turned out with good reason, for the next business day he called Dexter and again asked him if Kiebler had sufficient funds left in the loan to pay Martik for the remainder of the work under its contracts. Dexter answered “yes.”
Dexter’s assurances, however, were misplaced because in September 2007, on the third occasion when Frank Martik asked Dexter about payment for Martik’s work on the Project, at a time by which Martik *604substantially had finished its work but had not been paid on its final draw, Dexter told him that there were not sufficient funds to cover the draw. Frank Martik during his deposition indicated that if Dexter had told him in June that the funds were not sufficient to pay Martik it would have pulled off the job. Instead, Martik remained on the job, which now has been completed, and Martik thereby became entitled to substantial additional payments on its construction contracts as evidenced by the arbitration award.4 Significantly, notwithstanding Dexter’s assurances to Frank Martik in June 2007, when Dexter told Frank Martik that there were sufficient funds to pay Martik, Dexter’s contemporaneous internal Construction Monitoring Report showed that there was a shortfall of $1,077,000 dollars on the Project. Dexter, however, did not advise Frank Martik of the shortfall or of the report.
By reason of its final draw on the Project not having been paid, Martik brought this action against Huntington advancing three theories in support of its claim with which we are concerned on this appeal. First, Martik contended that Huntington made misrepresentations regarding the availability of funding under the construction loan to pay Martik and the misrepresentations caused Martik to continue work on the Project and thereby become enti-tied to payments which have not been made. Second, Martik contended that it detrimentally relied on Huntington’s promises and stayed on the Project and thus Huntington, by reason of a legal theory predicated on promissory estoppel, is liable for an amount equal to the arbitration award.5 Third, Martik contended that Huntington was unjustly enriched at Mar-tik’s expense and therefore is liable to Martik.6 Martik, 2009 WL 89282, at *1.
After completion of discovery, Huntington successfully moved for summary judgment against Martik. In its opinion granting that motion the District Court explained that the elements of the tort of intentional misrepresentation under the applicable Pennsylvania law are a misrepresentation which is material to the transaction at hand made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; with the intent of misleading another into relying on it; justifiable reliance on the misrepresentation; and a resulting injury being proximately caused by the reliance. Martik, 2009 WL 89282, at *6. See Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 560 (1999); Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994). The District Court then set forth more completely than we have done the history of the events leading to this litigation including the two statements *605that Dexter made to Frank Martik in June 2007 regarding the availability of funding and the circumstance that Dexter by that time had concluded that there was a financial shortfall on the Project.
The District Court concluded from the facts that:
It is doubtful that Mr. Dexter’s rather casual statements themselves or any other evidence adduced by Martik can support an inference that the representations were made falsely, with knowledge of their falsity or recklessness as to whether they were true or false, or that Martik would be justified in relying on such informal and non-specific conversations to assure it that there were sufficient funds to complete the project and pay Martik in full. [Huntington] offers evidence to support its contention that Mr. Dexter reasonably believed that there would be sufficient funding because, as Martik knew, Kiebler was looking for another source of funding, and that his statements were therefore true.
Martik, 2009 WL 89282, at *7. The District Court then went on to explain that:
But even if the Court found a genuine issue of material fact on these elements of the common law tort of intentional misrepresentation, Martik’s claim must fail in the complete absence of any evidence that might reasonably support an inference that Dexter’s statements were made with the intent of misleading Mar-tik into relying on it and induce it to finish a project it otherwise would not have. In lieu of actual evidence of intent, Martik merely speculates that Dexter and [Huntington] must have intended to mislead and induce Martik’s reliance, extrapolating such intent from the fact that they were aware of funding shortfalls before the statements were made. Interestingly, although Martik claims that Frank Martik ‘would have pulled off and cut our losses’ if Dexter’s answer had been ‘no,’ Martik does not aver that it communicated that to [Huntington],
Id.
After the District Court rejected Mar-tik’s misrepresentation claim,7 it held that Martik could not recover on a detrimental reliance theory which it indicated is the equivalent of a claim predicated on promissory estoppel. Id. at *8. See Lehigh Valley Hosp. v. County of Montgomery, 768 A.2d 1197, 1200 (Pa.Commw.Ct.2001). In reaching this conclusion the District Court pointed out that Dexter merely said that there was adequate funding for the Project but that “Dexter’s responses to Martik cannot be construed as a promise by [Huntington] to pay Martik for its work performed for Kiebler, nor can it be deemed a guarantee or a loan commitment.” Martik, 2009 WL 89282, at *8. Though we do not agree with some aspects of the District Court’s detrimental reliance discussion that we have not quoted, we do agree with the language we quote on this point and thus we will not reverse on the basis of Martik’s detrimental reliance theory or address that theory any further in this opinion.
*606The District Court also rejected Mar-tik’s unjust enrichment claim which it explained was “a synonym for quantum me-ruit,” Martik, 2009 WL 89282, at *9. See Mitchell v. Moore, 729 A.2d 1200, 1202 n. 2 (Pa.Super.Ct.1999). We agree with that disposition because the only thing of value that Huntington can be said to have received from Martik that could support a claim against it predicated on an unjust enrichment theory was the advantage to Huntington of having the Project completed thereby making its mortgage loans on the property more secure. But Martik does not contend on this appeal, and so far as we are aware did not contend in the District Court, that Huntington did not advance the funds that it agreed to supply when it entered into the Construction Loan Agreement with Kiebler and thus we are satisfied that Huntington has paid what it agreed to pay for the value of Martik’s performance under the construction contracts. Therefore Martik’s unjust enrichment claim must fail. See Meyers Plumbing and Heating Supply Co. v. West End Fed. Sav. and Loan Ass’n, 345 Pa.Super. 559, 498 A.2d 966, 969 (1985). In any event, at oral argument in our Court Mar-tik acknowledged that its unjust enrichment claim did not add anything to its misrepresentation claim. Thus, we do not address the unjust enrichment claim further.
Martik now appeals from the order of January 14, 2009.8 The District Court had jurisdiction in this diversity of citizenship action pursuant to 28 U.S.C. § 1332 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review on this appeal and thus we can affirm only if there is no genuine issue as to any material fact and Huntington is entitled to judgment as a matter of law. See Santos ex reí. Beato v. United States, 559 F.3d 189, 193 (3d Cir.2009); Fed.R.Civ.P. 56(e).9
Though we agree with the District Court’s statement of Pennsylvania law setting forth the elements of the tort of intentional misrepresentation, we are satisfied that the Court should not have granted summary judgment to Huntington to the extent that the Court rejected that theory. We, however, supplement the Court’s statement of the law by observing that Martik, in addition to asserting that Huntington intentionally misrepresented the facts, may have intended to contend that Huntington was guilty of negligent misrepresentation which, rather than requiring that the declarant actually know of the falsity of its statement, merely should have known of its falsity. See Bortz v. Noon, 729 A.2d at 561.
In explaining the reasons for our conclusion we start off by pointing out that notwithstanding the District Court’s characterization of Dexter’s statements as “rather casual,” we see nothing casual about Dexter’s two June 2007 statements when they are considered together. Though it is true that Frank Martik’s original inquiry of Dexter with respect to Martik being paid followed a more formal meeting and thus standing alone might be regarded as casual, there was nothing casual when he called Dexter the next day and again asked about the sufficiency of the funds to pay Martik. Arguably it *607should have been obvious to Dexter at that point that Martik had real concerns about getting paid and was, quite understandably, inquiring about being paid from the source of the funds being paid to it. In this regard we reiterate that Huntington had been disbursing proceeds from the construction loan directly to Martik so it was logical for Martik to ask Huntington about the availability of additional funds.
Moreover, although we certainly do not preclude the trier of the fact on the remand that will follow this opinion from concluding that Dexter believed what he said about the availability of sufficient funding to pay Martik, clearly the evidence supports an inference that Dexter knew that his statements that there was sufficient funding were false or reckless, or at a bare minimum so doubtful that a jury could believe that he was negligent when he expressed them. In this regard we reiterate that at the same time that Dexter was making the statements assuring Frank Martik that the funds were available to pay Martik, Dexter had concluded that there was a shortfall of $1,077,000 on the Project, a conclusion he memorialized in a contemporaneous internal Huntington report. Moreover, we reject the District Court’s view that its grant of summary judgment was justified inasmuch as Dexter “reasonably believed that there would be sufficient funding” because “Kiebler was looking for another source of funding.” Martik, 2009 WL 89282, at *7. After all, the record does not demonstrate that Dexter had any way of knowing if Kiebler would obtain that funding. In any event, arguably it should have been clear from the two conversations considered together that Frank Martik was not asking Dexter whether the funding to pay Martik would be there in the future. He was asking if it was there.
In reaching our conclusion we have not overlooked the District Court’s conclusion that it is doubtful that Martik justifiably could rely on the “non-specific conversations” between Frank Martik and Dexter. Rather, we cannot understand what was not specific in Frank Martik’s inquiries as to whether there was funding to pay Mar-tik and Dexter’s answers that the funding was there. Indeed, it is difficult to understand how Frank Martik’s questions and Dexter’s answers could have been more specific.
We also reject the District Court’s view that Martik’s claim must fail because there was no evidence to support an inference that Dexter intended to mislead Martik and thereby induce it to finish the Project even though funds to pay it were not available. Quite to the contraiy, we cannot help but wonder what the District Court thought Dexter believed would have happened if he had told Frank Martik that, as proved to be the case, there was not sufficient funding to pay Martik for its work, or if he said that he did not know if there was sufficient funding for that purpose. Surely Dexter had to believe that if Martik doubted that it would be paid it would not complete the Project.
We recognize that the District Court correctly points out that Frank Martik did not tell Dexter that Martik would pull off the job if the funding was not there, but Frank Martik had no reason to do so because Dexter said that the funding was there. Accordingly, though the District Court found that this point regarding Frank Martik not telling Dexter that without an assurance of payment Martik would leave the job was “interesting[ ],” it is without significance because the evidence at least supports and probably compels that an inference be drawn that Dexter was trying to keep Martik on the job. How could the evidence not support that *608inference for surely, as Dexter was well aware, it was in Huntington’s interest that Martik finish the Project and thereby enhance the value of Huntington’s security?
In its brief Huntington heavily relies on its contention that “Dexter’s alleged representations regarding whether Kiebler has sufficient funds to pay Martik ... are expressions of opinion and not statements of existing fact.” Appellee’s br. at 11. On the basis of that contention any statement of fact can be repackaged as an opinion. Huntington was financing the Project and was closely monitoring the use of the funds it was advancing. Frank Martik asked Dexter point blank as the construction was nearing its conclusion whether Kiebler had sufficient funds to pay Martik, and Dexter gave an unequivocal answer of “yes.” Thus, Dexter did not hedge his answer in the slightest and say, for example, “I think so.” If the bank financing the Project did not know the answer to Frank Martik’s question then who would? On these summary judgment proceedings we must regard the record as supporting a conclusion that Martik had every right to regard Dexter’s statements as setting forth a fact, not an opinion. Dexter’s statements cannot be equated to a stock broker’s opinion of what a security will be worth at some future date. Frank Martik was inquiring whether the funding was there, not whether Kiebler could raise the money to pay Martik.
For the foregoing reasons the order of January 14, 2009, will be reversed and the case will be remanded to the District Court so that Martik may proceed on its misrepresentation claim.
. In its brief Martik explains that "[t]he parties agreed that Martik would send [its] pay applications directly to Monica Butko, senior account relationship associate for Huntington, with copies of the pay applications to Richard Dexter, construction risk manager for Huntington, and Paul Kiebler." Appellant's br. at 5. As a matter of convenience we refer to the pay applications as "draws” as does Huntington in its brief.
. Martik filed a petition to confirm the arbitration award in the Common Pleas Court of Washington County, Pennsylvania, but Kie-bler removed the proceedings to the District Court. The parties in their briefs do not tell us the status of those proceedings.
.Huntington does not contend that notice to Dexter was not notice to Huntington. Richard Dexter testified during his deposition that he did not recall the first two conversations though he does not deny that they took place. Notwithstanding Dexter's lack of memory, Huntington indicates that it "disputes the existence and contents of these communications, but for purposes of the appeal, [it] understands that the Court must consider the facts in the light most favorable to Mar-tik. ..." Appellee's br. at 4 n. 1.
. Martik asserts that in reliance on Dexter’s representations it "continued to perform construction on the Project while incurring additional costs, which resulted in an outstanding unpaid contract balance of $2,120,003.75." Appellant's br. at 23-24.
. We think that it would be incorrect to characterize Martik’s damages claim as asserting that Huntington was liable for the arbitration award, inasmuch as the award included the amount for which Kiebler was liable under its construction contracts with Martik and, as we have explained, Huntington is not liable under the contracts. Rather, Martik is seeking to recover its losses from Huntington on the basis of a tort claim against Huntington. We express no opinion on what the effect will be on Marlik's arbitration award if it makes a recovery against Huntington though we recognize that Huntington may seek to subordinate to the arbitration award to the extent, if any, that it makes payments to Martik.
.Martik also alleged that it was a third party beneficiary of the Kiebler-Hunlington Construction Loan Agreement, but the District Court rejected that theory. See Martik, 2009 WL 89282, at *4-6. Martik does not advance this contention in this Court so we do not address it.
. Martik advances in this Court claims of both intentional and negligent misrepresentation. The District Court, however, addressed a claim of intentional misrepresentation but not negligent misrepresentation in granting summary judgment to Huntington, Martik, 2009 WL 89282, at *6-8, possibly because as Huntington contended in the District Court, Mar-tik's complaint arguably did not state a claim for negligent misrepresentation. At this time, however, we need not decide whether Martik adequately pled negligent misrepresentation, though the District Court can consider that question on remand if it necessary to do so. Of course, we do not preclude Martik from seeking on the remand to amend its complaint to assert a claim predicated on negligent misrepresentation.
. The District Court also granted Huntington's uncontested motion for summary judgment for indemnification against third party defendant Kiebler for any judgment that Mar-tik obtained against Huntington. We, however, are not concerned with the third party proceedings on this appeal and thus make no further reference to them.
. It should be understood that our factual recitations with respect to the events in this case are only for purposes of this appeal from the grant of summary judgment. We do not suggest that we are binding the District Court or a jury on remand to any factual conclusion that we set forth now on the basis of the record before us. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475653/ | OPINION
PER CURIAM.
Liu Wen, a Chinese native and citizen, petitions for review of a final order of the Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration Judge (“IJ”) of Wen’s application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We will deny the petition for review.
Before the IJ, Wen testified that he had suffered past persecution and feared future persecution by the Chinese government as a practitioner of Falun Gong. Wen testified that he began practicing Falun Gong in December 2004 after his uncle introduced him to the practice. A.R. 100. He started by going to gatherings with his uncle in August 2004, but started practicing himself in December, once or twice a week. A.R. 106. He was arrested in February 2005 with seven or eight people, and taken to the police station. Id. He was locked up for a bit over 20 days, during which time he was interrogated and beaten nearly every day. He was released when his parents paid the bail. He was then required to report every Monday, and was occasionally smacked when he did not answer questions about whether he was still practicing. A.R. 108-09. Wen testified that he practiced Falun Gong in the United States once a week in Chinatown, but he was not aware of the address. A.R. 110. He also distributed flyers about Fa-lun Gong in Chinatown about once a week. A.R. 114-15.
On cross-examination, Wen stated that when he was arrested in China, he was in the home of another Falun Gong practitioner by the name of Lin, Zhen Hui. A.R. 116. Wen also mentioned in testimony the names of others who were arrested with him. A.R. 117. Wen noted that his parents told him that the police had been coming to his home in China a few times a month looking for him, but acknowledged that neither his statement in support of his asylum application nor the letters he submitted from his father and uncle said anything about the police looking for him after he left China. A.R. 123-25. Wen also acknowledged that those documents did not mention anything about Wen being hit when he reported to police on Mondays. *610Id. Wen stated that he also practiced Fa-lun Gong at his home in New Jersey and that his roommate was aware of his practice. A.R. 125-26. His roommate took the submitted picture of Wen practicing Falun Gong in Chinatown. A.R. 128. Wen acknowledged that he had not submitted a letter from his roommate attesting to his practice, as his roommate, who lacks immigration status, was afraid to write one. A.R. 126. Wen stated that he did not know the names of the people he practiced Falun Gong with in Chinatown, and that despite the fact he had been practicing once a week since April 2005, he had made no friends among them. A.R. 127-28. Wen acknowledged that when he was arrested at the U.S. border, he told the agents he was afraid of returning to China because he had been smuggled out, but did not mention his Falun Gong practice. A.R. 129-31.
The IJ found Wen’s testimony not credible and also found that Wen failed to provide adequate corroborating evidence to support his application. Specifically, the IJ faulted Wen for failing to provide a letter or affidavit from his roommate in the United States who was aware of his Falun Gong practice. The IJ also noted that Wen could have tried to get corroboration from the owner of the house where he was arrested. The IJ based his adverse credibility finding on “significant omissions,” namely, the fact that neither his father’s letter nor his asylum application said anything about Wen being harmed when he reported to police following his detention, nor about police looking for him. The IJ also took notice that Wen had failed to mention to border officials that he feared returning to China because of his Falun Gong practice. Wen appealed to the BIA which adopted and affirmed the IJ’s decision.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s determinations if they are supported by reasonable, substantial and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, “the BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Where the BIA substantially adopts the findings of the IJ, we review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
To be granted asylum, Wen must show that he is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Wen must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in China based on one of these protected grounds. Senathi-rajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(A), (C). For relief under the CAT, Wen must demonstrate that it is more likely than not that he would be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
The BIA’s finding that Wen’s testimony was not credible is supported by substantial evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir.2006) (an adverse credibility determination is appropriately based on inconsistent statements and contradictory evidence). The BIA, in upholding the IJ’s credibility determination, relied in part on inconsistencies between Wen’s initial interview with an immigration officer and his testimony before the IJ. In that statement, Wen told *611the immigration officer that he was afraid of returning to China because he had been smuggled out, but did not mention his Falun Gong practice. While we have counseled against placing too much weight on a petitioner’s interview with immigration authorities at the point of entry, see He Chun Chen, 376 F.3d at 223-24, Wen’s statement does not appear to have the type of defects which make such statements unreliable. See Balasubramanrim v. I.N.S., 143 F.3d 157, 163 (3d Cir.1998) (airport statement unreliable where immigrant did not have translator and the interview was not accurately recorded). In any event, the IJ pointed to other reasons for finding Wen’s testimony incredible, including omissions about what happened to him when he reported to the police and whether police were looking for him. Therefore, there is substantial evidence to support the IJ’s adverse credibility determination.
The IJ and the BIA also faulted Wen for failing to provide corroborating evidence to support his testimony. The BIA’s rule regarding corroborating evidence contemplates a three-part inquiry: “1) identification of the facts for which it is reasonable to expect corroboration; 2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if [he] has not, 3) an analysis of whether the applicant has adequately explained [his] failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (citation and quotation omitted).1 Here, the IJ found it significant that Wen failed to provide a statement corroborating his practice of Falun Gong from his roommate. Although Wen’s roommate may have been afraid to appear at the hearing in person, it was not unreasonable for the IJ and the BIA to expect Wen to provide a letter or affidavit from his roommate or from someone else in the United States who was aware of Wen’s Falun Gong practice here. Therefore, substantial evidence supports the IJ and the BIA’s finding that Wen failed to provide sufficient corroborating evidence to support his testimony.
Because Wen cannot satisfy the standard for asylum, he cannot satisfy the higher burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.1991). Nor does the record show that Wen would likely be tortured by or with the acquiescence of a Chinese official. Therefore, he is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc). For the foregoing reasons, we will deny the petition for review.
. The REAL ID Act of 2005, which applies here since Wen filed his application after May 11, 2005, instructs courts to defer to the trier of fact’s determination on corroborating evidence. Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir.2007). The REAL ID Act, however, does not change our rules regarding the IJ's duty to develop the applicant’s testimony in accordance with the Abdulai steps. Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475655/ | OPINION
SLOVITER, Circuit Judge.
Carlos Dominguez (“Dominguez”) appeals the District Court’s grant of summary judgment in favor of Costco Wholesale Corporation (“Costco”). For the reasons stated below, we will affirm.
I.
Costco is a wholesale club that sells retail goods to its members. In May 2004, Costco hired Dominguez as a Loss Prevention Agent at its Wharton, New Jersey, warehouse. Terrence Berry (“Berry”), a Loss Prevention Supervisor who previously worked with Dominguez at another com*613pany, recruited Dominguez for the position and became his supervisor. It was Dominguez’s job to apprehend shoplifters and investigate employee dishonesty. Dominguez investigated as possible employee dishonesty the donation of day-old bakery products to charities from the store’s rear entrance; the taking of lunch breaks by Gelisa Torres (“Torres”), a salaried manager, that Dominguez thought were too long; and the selling of Internet-based “bootlegged” DVDs by a manager to coworkers on store premises.
In Dominguez’s first performance evaluation, a “thirty-day review,” Berry noted that Dominguez needed to improve his attendance and punctuality. Dominguez agreed with Berry’s assessment. In the second performance evaluation, a “ninety-day review,” Berry made the same observation. Dominguez agreed that he was “continuing to have problems with [his] attendance and punctuality....” App. at 109. Berry nevertheless recommended that Dominguez continue to be employed at Costco.
During the ensuing year, Dominguez received five “counseling notices” for various infractions that included reporting late to work five times in March 2005 and seven times in May 2005. Two of these counseling notices were issued by Berry. The May 2005 counseling notice, his fourth, stated that it was the “last and final counseling notice on this issue.” App. at 291. Under Costco’s policy, an employee will be terminated for accumulating four counseling notices within a six-month period. In June 2005, Costco’s warehouse manager, Lorry Janus (“Janus”), issued a fifth counseling notice. Upon realizing that Dominguez had accumulated over four counseling notices in the previous six months, Janus contacted Costco’s regional vice president, Yoram Rubanenko (“Rubanenko”), to request approval to terminate Dominguez’s employment. Rubanenko approved, and Dominguez’s employment was terminated on June 17, 2005.
Dominguez sued Costco under the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J. Stat. Ann. §§ 34:19-1 to -14, alleging that Costco terminated his employment because he had been investigating managers and supervisors for misconduct and reporting his findings to Berry, Torres, and to a regional supervisor. In granting summary judgment in favor of Costco, the District Court held that Dominguez failed to adduce evidence that any of his investigations caused the counseling notices.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This court has jurisdiction under 28 U.S.C. § 1291. The standard of review of a district court’s grant of summary judgment is de novo. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir.2009). A court may grant summary judgment if, drawing all reasonable inferences in favor of the nonmoving party, “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
III.
The New Jersey CEPA is “remedial legislation” meant “to protect employees who report illegal or unethical workplace activities.” Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 751 A.2d 1035, 1038 (2000) (internal citation and quotation omitted). Under CEPA, it is unlawful for an employer to retaliate against an employee because the employee discloses an activity of the employer that the employee reasonably believes is in violation of a law *614or is fraudulent or criminal. N.J. Stat. Ann. § 34:19—8(c). A plaintiff who brings a cause of action under CEPA must demonstrate that (1) he or she reasonably believed that the employer’s conduct violated a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J. Stat. Ann. § 34:19—3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir.2007) (citing Dzwonar v. McDevitt, 177 N.J. 451, 828 A.2d 893, 900 (2003)). A CEPA plaintiff can prove a causal connection through “inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action....” Maimone v. City of Atl. City, 188 N.J. 221, 903 A.2d 1055, 1064 (2006) (citation omitted). In circumstantial evidence cases, New Jersey courts apply the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. Fleming, 751 A.2d at 1041. The burden of proof to make a prima facie case rests with the plaintiff. Id.
The District Court correctly granted summary judgment based upon a lack of evidence of causation. Dominguez points to no evidence that the decision-makers, Janus and Rubanenko, knew about his investigations when they decided to terminate his employment. In addition, Dominguez points to no evidence that the various managers who issued counseling notices knew about his investigations, with the exception of Berry. However, Berry recruited Dominguez, recommended him for continued employment at Costco, and was not the subject of an investigation. The only manager who issued a counseling notice and was also the subject of an investigation could not have known about it, as Dominguez did not reveal the investigation until after the manager had issued the counseling notice. Dominguez’s argument to the contrary, that Torres must have known because “she saw [him] following her to the office,” Appellant’s Br. at 7 (quoting App. at 587), is based entirely on speculation. Dominguez likewise points to no record evidence that Marc Cibellis, another manager who issued a counseling notice, knew about any investigations.
Dominguez argues that Berry and other managers were motivated to issue him counseling notices because they knew “that other supervisors or managers were guilty of transgressions disclosed by Dominguez which they themselves ... had failed to report to higher authorities,” and, thus, the investigations “presented a potential for serious interference with the continuation of [their] careers.... ” Appellant’s Br. at 27-28. “[Retaliatory motive on the part of non-decision-makers is not enough to satisfy the causation element of a CEPA claim.” Caver v. City of Trenton, 420 F.3d 243, 258 (3d Cir.2005). In any event, Dominguez’s argument rests on the assumption that multiple managers independently issued him counseling notices with a shared purpose of retaliating against him, either as a coincidence or as part of a vast conspiracy. The record does not support such an assumption.
Finally, Dominguez argues that “the timing of events is certainly consistent with a causal nexus” because it was “during this same period, from January to June, 2005, that Dominguez was conducting his investigations.... ” Appellant’s Br. at 29. As an initial matter, Dominguez makes this argument without citation to record evidence. Dominguez could not remember when he conducted certain investigations, and there is no evidence placing the managers’ knowledge of an investiga*615tion in temporal proximity with the issuance of a counseling notice. See App. at 111 (“I can’t remember the exact dates.”). Even if Dominguez conducted investigations from January to June 2005, that does not permit an inference of causation without evidence that the managers knew about those investigations. Dominguez has not met his burden.
IY.
For the above-stated reasons, the judgment of the District Court will be affirmed.1
. Appellee’s Motion for taxation of costs in connection with preparation of the Supplemental Appendix is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471218/ | MEMORANDUM **
Celerino Velaseo-Flores, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Velaseo-Flores’ motion to reopen as untimely because the motion was filed more than two years after the BIA’s December 16, 2003, order dismissing his appeal, see 8 C.F.R. § 1003.2(c)(2), and Ve-lasco-Flores failed to establish the due *342diligence required to warrant tolling of the motions deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).
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/8471220/ | *343MEMORANDUM **
Weiqi Jin and his wife, natives and citizens of China, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their motion for reconsideration. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), and we grant in part and dismiss in part the petition for review.
The agency abused its discretion when it denied Jin’s motion to reconsider, because the IJ failed to balance favorable factors against negative factors when denying asylum in the exercise of discretion. See Grulla v. Gonzales, 498 F.3d 911, 915-16 (9th Cir.2007) (agency abuses its discretion when in denying relief it fails to properly consider all relevant factors and explain how each figures in the balance); see also 8 C.F.R. § 1003.2(b)(1) (motion to reconsider identifies errors of law or fact in the agency’s prior decision).
To the extent Jin challenges the BIA’s November 29, 2006 order denying his second motion to reconsider, the court lacks jurisdiction because Jin did not file a petition for review of that decision. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
The parties shall each bear their own costs on appeal.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part; 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/8471222/ | MEMORANDUM **
Gurpreet Khurana, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant the petition for review and remand.
The BIA abused its discretion when it concluded that Khurana failed to exercise the due diligence required for equitable tolling of the 90-day motions deadline. See Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir.2007) (due diligence where petitioner repeatedly sought new counsel in pursuit of relief). Khurana timely retained current counsel after her original petition for review was denied, and filed the motion to reopen within 90 days of her counsel receiving the administrative record and reviewing it with Khurana. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (motions deadline tolled until petitioner meets with new counsel and reviews file).
We disagree with the BIA’s conclusion that Khurana’s counsels before the IJ and BIA were sufficient. See Mohammed, 400 F.3d at 793 (alien must demonstrate constitutionally deficient counsel and prejudice to prevail on an ineffective assistance *345of counsel claim). Khurana’s motion to reopen included eight sworn declarations from colleagues, including her attorney and treating physician, detailing her two detentions, beatings, and rape by authorities in India, none of which were requested by her counsel before the IJ. Khurana also submitted medical evidence of post-partum depression, available at the time of the hearing, but neither requested nor obtained by counsel, that may explain some of the inconsistencies in her testimony cited by the IJ. Khurana also submitted a letter from her gurdawara that explains the circumstances and timing of her marriage ceremony.
This failure to effectively document and present the asylum claim before the IJ, and failure of subsequently retained counsel to identify the ineffective assistance of counsel, rendered Khurana’s removal proceedings so fundamentally unfair that the she was prevented from reasonably presenting her case, see Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004), and may have affected the outcome of Khurana’s removal proceeding, see Itunibarria, 321 F.3d at 899-900.
We therefore grant the petition for review, and remand to the BIA.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471224/ | MEMORANDUM **
Salvador Anguiano-Medel, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to review questions of law. Reviewing de novo, Garcia-Jimenez v. Gonzales, 488 F.3d 1082, 1085 (9th Cir.2007), we grant the petition for review and remand.
Under the modified categorical approach employed by the agency, we cannot conclude that Anguiano-Medel pleaded guilty to a crime related to a drug listed in the Controlled Substances Act. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir.2007). As the record of conviction did not establish the factual predicate for An-guiano-Medel’s plea, it cannot form the basis of the agency’s removal order. See United States v. Vidal, 504 F.3d 1072 (9th Cir.2007) (en banc) (judgment must contain the critical phrase “as charged in the information” in order to incorporate facts alleged in the information); see also Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir.2007) (applying the modified categorical analysis in an immigration context).
In light of this determination, and our intervening decision in Sandoval-Lua, 499 F.3d at 1129-30 (alien seeking to demonstrate that criminal convictions do not bar relief from removal may do so by pointing to inconclusive record of conviction), we grant the petition for review, and remand to the BIA.
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475643/ | OPINION
GARTH, Circuit Judge:
Jeffery Brooks appeals the District Court’s ruling on his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.
I.
In 2004, Brooks pled guilty to distribution, and possession with intent to distribute, crack cocaine, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the District Court adopted a presentenee report that calculated an adjusted offense level of 25. This was computed by starting with the then-applicable base offense level of 28 for crimes involving at least 20 grams but less than 35 grams of crack cocaine, and then subtracting three levels for acceptance of responsibility. See U.S.S.G. § 2D1.1; 3E1.1. When combined with Brooks’ criminal history category of III, this yielded a guideline imprisonment range of 70-87 months. The District Court imposed a sentence including a 78-month term of imprisonment.
Following the United States Sentencing Commission’s retroactive amendment to the crack cocaine sentencing guidelines (“Amendment 706”), Brooks filed a pro se motion for sentence reduction under 18 U.S.C. § 3582(c)(2). Brooks argued that, pursuant to Amendment 706, the District Court should recalculate his guidelines range by reducing his base offense level by two, resulting in a sentencing guidelines range of 57-71 months. Brooks further argued that, in conducting his resentenc-ing, the District Court should not be limited to a recalculation of his offense level, but should conduct a full review of his sentence under the framework established in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
The Probation Office and the government agreed that Amendment 706 rendered Brooks eligible for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). On May 1, 2008, the District Court granted Brooks’ motion in part. Based on Amendment 706, the court calculated a new guideline range of 57-71 months and reduced Brooks’ sentence to 64 months, but denied Brooks’ request for a full resentencing, ruling that it lacked authority under § 3582(c)(2) to do so. Brooks then filed a notice of appeal.1
*588II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review over the District Court’s interpretation of the sentencing guidelines and § 3582(c)(2). United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
III.
Brooks argues that because Amendment 706 lowered his guideline imprisonment range and rendered him eligible for a § 3582(c)(2) sentence reduction, the District Court should have conducted a full resentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), pursuant to which the District Court might have further reduced his sentence. We rejected this argument in United States v. Dillon, 572 F.3d 146 (3d Cir.2009), where we held that “Booker does not apply to the size of a sentence reduction that may be granted under § 3582(c)(2).”2 Id. at 149; see also United States v. Doe, 564 F.3d 305, 312-14 (3d Cir.2009) (holding that Booker does not affect eligibility for a § 3582(c)(2) reduction). In light of Dillon, the District Court did not err in concluding that Brooks was not entitled to a full resentenc-ing.
Brooks further argues that the District Court should be given an opportunity to amend the sentence in response to a recent change in the Department of Justice’s policy regarding the Sentencing Guidelines’ differential treatment of offenses involving crack cocaine and powder cocaine. This argument is meritless. 18 U.S.C. § 3582(c)(2) permits a sentence reduction only where a defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently lowered by the Sentencing Commission.” Nothing in § 3582(c)(2) permits the District Court to alter a previously imposed sentence simply because the Department of Justice has announced a new or revised policy goal. See United States v. Miller, 348 Fed.Appx. 384, 386 (10th Cir.2009).
IV.
For the reasons given above, we will affirm the judgment of the District Court.
. Brooks' notice of appeal initially appeared to be untimely. We remanded to the District Court for a determination whether to treat the notice of appeal as a motion for extension of time to file a notice of appeal pursuant to Fed. R.App. P. Rule 4(b)(4). The District Court so construed the notice of appeal, and *588granted the motion. Accordingly, the notice of appeal was timely filed.
. At the time Brooks filed his initial brief, we had decided Dillon as a nonprecedential opinion. Brooks acknowledged Dillon but urged us not to follow it. Appellant Br. 9-10, 14. One week after Brooks filed his brief, we granted a motion to publish Dillon as a prece-dential opinion. It therefore binds us and controls this case. Third Circuit I.O.P. 9.1. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475645/ | OPINION
PER CURIAM.
An Qing Wu, a native and citizen of the People’s Republic of China, seeks review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny the petition for review.
I.
Wu, a twenty-six-year-old unmarried male, entered the United States via Mexico on August 7, 2005. The government issued a Notice to Appear the next day, charging Wu as an alien present without being admitted or paroled. Wu conceded removability as charged, and venue over his removal proceeding was transferred, at Wu’s request, from Texas to New Jersey. In proceedings before the Immigration Judge (“IJ”) in New Jersey, Wu applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Wu claimed that he suffered past persecution, and feared future persecution, for having disseminated censored news materials over the internet.
In his written asylum application filed May 18, 2006, Wu alleged that he is from Fujian Province, and was in the wholesale seafood and timber business beginning in 2001. In 2003, he allegedly learned from a former schoolmate named Chen how to access “politically censored news” over the internet, including access to websites that were blocked by the Chinese government. After Chen helped Wu install proxy software on his computer to open blocked sites, Wu claims that he began sending censored news to friends, particularly news about government corruption, along with Wu’s background analysis on the corruption. Wu allegedly sent these emails *590from his home computer or at “web bars” using internet access service cards.
Wu claims that on December 20, 2003, local police detained and interrogated him, and confiscated his computer. The police allegedly discovered the proxy and questioned Wu as to his “source,” which Wu refused to disclose. Wu claims that the police slapped him and released him after three days. Wu’s computer was returned to him.
Wu thereafter ceased sending the emails, and he claims that before Chinese New Year, 2004, a police officer interrogated him as to why he was no longer doing so. One month later, the officer allegedly again questioned Wu, and advised that Wu would “have no more problems” if he identified the person who taught him to install and access the proxy. The officer allegedly threatened to arrest Wu and harm his business. Wu claims that he refused to cooperate. In the two months that followed, Wu’s business allegedly “was going down,” and he was told by a wholesaler that the police had instructed him not to sell timber to Wu. Wu then decided to leave China.
On April 15, 2004, Wu claims that he was arrested in Inner Mongolia, China, as he was making his way to Russia. Wu allegedly was detained, and an officer hit Wu with his hands. An officer also allegedly threw a water glass at Wu, with the glass breaking on Wu’s shoulder and falling to the ground. The officer pushed Wu to the ground, and Wu’s right elbow was cut by the broken glass. Wu claims that he did not receive proper medical treatment for the wound. On April 30, 2004, after Wu had spent fifteen days in detention, Wu’s father paid bail of 20,000 RMB, and Wu was released.
After returning home, Wu claims that he was interrogated by local police, who threatened him and interfered with his business. Wu again decided to leave China, which he did in March 2005, arriving in the United States in August 2005.
Wu testified before the IJ on September 29, 2006. He stated that he left China because, inter alia, “[t]here were limitations set on me, and I was tortured.” Wu testified that the police discovered his activity of spreading censored news, leading to his interrogation on December 20, 2003, when he was slapped in the face. Among other things, Wu recounted his alleged first attempt to leave China, his arrest in Inner Mongolia, and his fifteen-day detention, when he allegedly suffered the injury to his right elbow. Wu testified that he was “under surveillance” after he returned from Inner Mongolia, and that local police contacted Wu three times in an effort to discover his source. Wu stated that if he returned to China, “they would monitor me and my personal freedom would be limited and they might torture me again and send me back to the policeman again.”
The IJ rendered an oral decision in which he rejected Wu’s credibility and denied all relief. The IJ found Wu’s testimony “too confusing” to meet his burden of proof, and that Wu had omitted important details and information regarding his claims. The IJ noted that Wu failed to reveal any particular feelings regarding government corruption in China, failed to submit copies of the purported emails he had sent, and submitted “virtually no corroboration” for his testimony. While acknowledging the existence of a scar on Wu’s arm, the IJ could not conclude from the evidence that the injury resulted from torture or persecution. The IJ also found that the December 2003 and April 2004 incidents in police custody do not rise to the level of past persecution. The IJ found Wu’s testimony “for the most part vague and difficult to understand and not compelling at all,” and noted that Wu “appeared throughout the hearing to be un*591comfortable, to be nervous and to not have any narrative string to his testimony.” The IJ cited in particular Wu’s inconsistent statements regarding the police activity after he returned from Inner Mongolia. Finally, the IJ observed that, based on information in the State Department Country Report, “it would appear that the actual chance of being jailed for Internet writing is extremely remote,” making it unlikely that Wu was arrested for internet usage. The IJ also found no evidence that Wu would more likely than not be tortured upon return to China.
The BIA dismissed Wu’s appeal, holding that the IJ’s adverse credibility determination was not clearly erroneous. The BIA agreed with the IJ that Wu’s “vague” testimony, combined with a lack of corroborating evidence, failed to show that he had engaged in dissentient activity over the internet. On the basis of the reasons stated in the IJ’s decision, the BIA affirmed the conclusions that Wu failed to offer credible testimony to establish past persecution, a well-founded fear of future persecution, or a likelihood of torture. Wu timely filed his petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s final order of removal. When, as here, the BIA issues its own decision but affirms substantially on the basis of the IJ’s stated reasons, we review both decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We must uphold the factual determinations made during administrative proceedings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We apply this substantial evidence standard to review an adverse credibility determination. Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility determination must be supported by sufficient, cogent reasons. Id. at 434. An adverse credibility determination that is supported by sufficient evidence is upheld unless “ ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Chen, 376 F.3d at 222 (quoting 8 U.S.C. § 1252(b)(4)(B)).
Under the provisions of the REAL ID Act, which the BIA correctly noted are applicable here, the IJ, after “[cjonsidering the totality of the circumstances, and all relevant factors,” may base an adverse credibility determination
on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(l)(B)(iii).
Upon a review of the record, we find substantial evidence to support the adverse credibility determination. The IJ primarily noted the inconsistency in Wu’s testimony with regard to events upon Wu’s return from his alleged first attempt to leave China. In his asylum application, Wu stated that the police threatened him and interfered with his business upon return. In his testimony before the IJ, Wu stated that he was put “under surveil*592lance” and contacted three times by the authorities. After the IJ questioned Wu about his failure to mention in his testimony that the police had threatened him and his business, Wu then stated that he was interrogated three times at the police station and told that he would be imprisoned if he refused to reveal his source. The inconsistencies and omissions in Wu’s statements about these important events— events that allegedly compelled Wu to attempt a second departure from China— provide. record support for an adverse credibility finding. Furthermore, given the absence of corroborating record evidence for Wu’s alleged political opinions and internet activities, Wu’s vague testimony about his political intentions and internet activities, and the IJ’s expressed concerns about Wu’s demeanor, we cannot conclude that any reasonable adjudicator would be compelled to find Wu’s testimony credible.1
Wu argues that the IJ and BIA erred by “ignoring” Wu’s documentary evidence reflecting his arrest in Inner Mongolia for an illegal border crossing and treatment for his elbow injury. While Wu argues that this evidence corroborated his story, it does not appear from the record that the IJ or BIA overlooked this evidence. Indeed, the BIA expressly observed that the IJ “specifically noted” and “considered” this evidence. Moreover, as the BIA explained, even if the IJ overstated Wu’s evidentiary omissions in concluding that there was no corroboration for Wu’s claimed first attempt to leave China, there is substantial evidence in the record to support the IJ’s ultimate rejection of Wu’s claims, including the inconsistencies in Wu’s testimony, the absence of corroboration for his alleged political opinions and internet activities, and the IJ’s adverse perception of Wu’s demeanor.
Finally, Wu challenges the denial of his claim for CAT relief.2 To be eligible for a withholding of removal under the CAT, Wu had to show that it is more likely than not that he will be tortured in China. See 8 C.F.R. § 208.16(c)(2); Sevoicm v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002). Torture is defined as the intentional infliction of severe pain or suffering “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
Wu argues that he was tortured in April 2004 because the police threw him to the ground, resulting in the cut on his arm, and failed to provide prompt medical treatment for the injury. Wu claims that this “past torture” suggests a probability that he will be tortured again. The record, however, reflects substantial evidence for the IJ’s finding that the April 2004 incident does not rise to the level of past persecution. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” and explaining that persecution “does not encompass all treatment that our society regards as unfair, unjust or even unlawful or unconstitutional”). Wu has not shown that he will be singled out for torture upon return to China, and the record does not compel a conclusion contrary to the one reached by the IJ and BIA.
*593hi.
We have considered Wu’s remaining arguments but find them without merit and in need of no discussion. For the foregoing reasons, we will deny the petition for review.
. We note that, although this Court has not yet addressed whether the new credibility standard of 8 U.S.C. § 1158(b)(l)(B)(iii) is consistent with due process, we are satisfied that Wu’s challenge to the BIA's adverse credibility finding would fail under the pre-REAL ID Act standard, as well.
. Wu does not argue his claim for mandatory withholding of removal in his brief to this Court, and thus we deem that issue waived and do not address it. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475647/ | OPINION
PER CURIAM.
Petitioner Shu Rong Cai, a native and citizen of China, entered the United States on or about February 14, 2001. On November 8, 2005, Cai filed an application for asylum under Immigration & Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. § § 1208.16(c), 1208.18, claiming a fear of persecution on account of her opposition to China’s population control policies. In her asylum application, Cai stated that she and a boyfriend had a child together who was born on August 9, 2003, and, now, she was pregnant with a second child. She feared that if she returned to China she would be forcibly sterilized because of her two children. On January 13, 2006, removal proceedings were initiated against Cai when the former Immigration & Naturalization Service filed a Notice to Appear with the Immigration Court, charging that she was subject to removal pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Cai eventually admitted the allegations in the NTA.
A hearing on the merits was held on March 14, 2007. At the hearing, Cai testified that she was born in Fujian Province. She has two children born here in the United States, a son, Eric, born in 2003, and a daughter, Sophia, born in 2006. She testified that she is not close to the children’s father, and that, after she became pregnant with their second child, Cai asked him to marry her, but he revealed that he was already married to someone else. Cai worked as a babysitter. If she returned to China she would live with her parents. Cai testified that she had several different reasons for her fear of forced sterilization. First, when she lived in China she regularly saw fliers and posters in public which described the family planning policies of the Chinese government. Second, both her aunt and her sister-in-law were forced to undergo sterilization after they had borne two children; Cai submitted affidavits from both women.
Third, Cai believed that if she returned to China her children would be treated as Chinese nationals and would count against the number of children she may bear. Cai asked her mother, who lives in China, to inquire with local authorities as to how the *595children would be regarded in terms of family planning regulations, and her mother reported in an affidavit, which Cai submitted, that she was told the children would count against the limits imposed by the Chinese government. Fourth, Cai noted an affidavit, which related the story of a Chinese couple who bore two children while living in Japan illegally, and, upon their return to China, the husband was forcibly sterilized. Cai also testified that, in addition to forced sterilization, she fears that the Chinese government will fine her as much as $1,500.00, and she also fears that her children, as United States citizens, would not be entitled to free health care and educational benefits.
The Immigration Judge issued a decision at the end of the merits hearing, concluding that Cai did not meet her burden of proof under the asylum statute to establish that she has a well-founded fear of future persecution.1 The IJ also denied withholding of removal, and found that Cai failed to show that it was more likely than not that she would be tortured upon her return to China. The IJ noted at the outset that he had reviewed all of Cai’s many documents offered in support of her claims. Since Cai made no allegation of past persecution, her asylum case depended solely on whether she could show a well-founded fear of persecution in the future. The IJ found that Cai’s testimony was candid and honest.
However, the IJ made the following findings which undercut Cai’s claim of a well-founded fear of forced sterilization. First, she knew of no one returning to China from the United States with two children who had been sterilized. Second, although she saw many posters and fliers announcing the family planning policies of the Chinese government when she lived in China, none of those related to women returning from the United States with two children born there. Third, Cai knew of two persons who had actually been sterilized, her aunt and her sister-in-law, but neither of them bore their children overseas. Fourth, Cai’s affidavit from a Chinese man who had lived in Japan with his wife could be given little weight because the couple returned to China from Japan, not the United States, there were no original documents evidencing the husband’s forced sterilization, there were no witnesses to testify to the experience who might then be subject to cross-examination, and Cai herself did not know the couple. Her mother’s affidavit was not corroborated by any letter from the local authorities themselves. The IJ further found that, although Cai might face a fine of $1,500.00 upon her return to China, a fine of this amount under the circumstances presented would not constitute persecution.
With respect to the many documents submitted by Cai, the IJ took particular note of a letter from the State Department’s Bureau of Democracy, Human Rights and Labor, dated January 9, 2007, to Ms. Randra Zagzoug of the Department of Homeland Security. The IJ set forth the contents of the letter in some detail, including this statement: “[T]here is evidence that [forced abortions or sterilizations] have taken place as revealed by the case of Chen Guangcheng of Linyi City in Shandong Province” but “[rjegarding the alleged existence of an official government policy mandating the sterilization of one partner of couples that have given birth to two children [in the United States], United *596States officials in China are unaware of any such a policy at either the national or the provincial level.” App. 15.
Cai appealed to the Board of Immigration Appeals, and filed a motion for a remand. On October 10, 2008, the Board dismissed the appeal, concluding that the IJ had not erred, and denied the remand motion.2 The Board agreed with the IJ that Cai’s evidence did not establish an objectively reasonable fear of future persecution. The Board reasoned that her documentary evidence regarding China’s population control laws was only general in nature with respect to China’s one-child policy, and it, or evidence similar to it, had been fully considered and rejected before in the Board’s recent decisions, Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), and Matter of S-Y-G- 24 I. & N. Dec. 247 (BIA 2007). See also Yu v. Att’y Gen. of U.S., 513 F.3d 346 (3d Cir.2008). The documentary evidence did not establish that forcible sterilization is mandated in Fujian Province after the birth of a second United States citizen child. Specifically pointing to the January 9, 2007 State Department letter relied upon by the IJ, the Board stated that the evidence established no uniform policy regarding the implementation of population control laws with respect to children born outside of China.
The Board also reviewed the individualized evidence presented by Cai, including her testimony that she had observed posters and fliers in China announcing China’s family planning policies, that she would face a possible fine of $1,500.00 upon returning to China, the sterilizations of her aunt and sister-in-law, the affidavit from the Chinese man who returned from Japan with two children and was forcibly sterilized, and the affidavit from her mother reporting her interview with local family planning officials. The Board agreed with the IJ that this evidence did not establish that Cai would be singled out for persecution, and the Board specifically held that Cai’s mother’s affidavit was entitled to limited weight because it contained multiple levels of hearsay.
With respect to the motion for remand, the Board found that the documents submitted with the motion were available at the time of the March 2007 hearing, and/or were cumulative of the evidence already in the record and the other documents previously analyzed in cases cited by the Board. Cai has timely petitioned for review of the Board’s decision.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a)(1), (b)(1), and, here, to the extent that the Board deferred to the IJ’s reasoning in part, we review the Board’s decision but consider the IJ’s as well as a matter of logic. See Abdulrah-man v. Ashcroft, 330 F.3d 587, 591 (3d Cir.2003). To qualify as a “refugee” under INA § 101(a)(42), Cai had to establish that she was persecuted for failing or refusing to undergo involuntary sterilization or for “other resistance” to China’s population control policy, or alternatively, that she has a well-founded fear of being persecuted, once returned to China, for her resistance to the population control policy. 8 U.S.C. § 1101(a)(42); Li v. U.S. Attorney. Gen., 400 F.3d 157, 163 (3d Cir.2007). If so, she is deemed to have been persecuted on account of a political opinion. Id. Cai did not claim that she had been persecuted in the past.
An applicant bears the burden of proving eligibility for asylum. Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 312 (3d Cir. 2007). In the absence of evidence of past *597persecution, the applicant must demonstrate a subjective fear of persecution through credible testimony that her fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003), and the applicant must show that a reasonable person in her circumstances would fear persecution if returned to the country in question, see id. The Board’s findings in this regard “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, Cai must establish that the evidence does not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).
The more exacting withholding of removal standard requires an alien to show by a “clear probability” that her life or freedom would be threatened on account of a protected ground in the proposed country of removal. Immigration & Naturalization Serv. v. Stevie, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430,107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“would be threatened” standard has no subjective component). In making out a CAT claim, the burden of proof is on the applicant to establish that it is more likely than not that she would be tortured in her native country. 8 C.F.R. § 1208.16(c)(2). Cai contends that forced sterilization amounts to torture.
Cai contends in her brief on appeal that she has established a well-founded fear of forced sterilization through her individualized and documentary evidence, and that the Board erred because it failed to consider all the documents she submitted. Furthermore, the Board abused its discretion in denying her motion to remand. We begin first with Cai’s argument that the Board did not consider all of her material evidence. Under the standards we set forth in Zheng v. Att’y Gen. of U.S., 549 F.3d 260 (3d Cir.2008), the Board must explicitly consider any country conditions evidence that materially bears on an applicant’s claim, see id. at 268.
In evaluating Cai’s documentary evidence, the Board relied to a large extent on its prior evaluation of identical or similar evidence of alleged Chinese coercive population measures, as reported in Matter of S-Y-G-, 24 I. & N. Dec. 247, and Matter of J-W-S-, 24 I. & N. Dec. 185. We have reviewed the Administrative Record, which exceeds two-thousand (2000) pages, and we conclude that Cai’s documentary evidence is indeed identical or similar to evidence the Board, and even this Court, has previously considered and found lacking. In Matter of J-W-S-, the Board examined and found unpersuasive an affidavit from John Shields Aird, a 2003 administrative decision from the Fujian Province Department of Family-Planning Administration, a May 22, 2003 administrative opinion from the Changle City Family-Planning Board with regard to the family of Zheng Yu He, and a Q & A sheet for Changle City Family Planning. 24 I. & N. Dec. at 189-92.3 Citing the State Department’s 2006 Country Report, the Board noted that Chinese citizens who violate family planning policies face only economic penalties, such as job loss and destruction of property. Id. at 190. The Board also noted that a 2007 State Department report stated that children born outside of China are not considered permanent residents of China and therefore are not counted against parents for purposes of family planning compliance. Id. at 190-91. Fur*598thermore, according to government publications issued in 2005, 2006, and 2007, Fujian Province is lax and uneven in its family planning policy enforcement, that physical coercion is officially condemned, and any sanctions returning parents may face would be economic. Id. at 194.
Matter of S-Y-G-, 24 I. & N. Dec. 247, is the decision issued by the Board following the remand in Slum Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), and, in it, the Board held that the documents submitted, which included the 2003 Chan-gle City Administrative Opinion and the 2003 Fujian Province Administrative Decision, reflected general birth planning policies in the applicant’s home province that did not specifically show any likelihood that she or similarly situated Chinese nationals would be persecuted as a result of the birth of a second child in the United States. 24 I. & N. Dec. at 254-256. The Board noted that a 2007 Department of State letter established that children born outside of China, and who are not registered as permanent residents of China, are “not counted” against parents for purposes of family planning compliance. The State Department was not aware of either a national or provincial policy requiring that a parent be sterilized after the birth of two children. Id. at 255-56.4
In Zheng, 549 F.3d 260, the Board failed to discuss “most of the evidentiary record.” Id. at 269. That is not the case here. Comparison of the documentary evidence analyzed in those cases cited by the Board with that provided by Cai reveals very similar conditions, namely, that there is some evidence of forced sterilization, but insufficient evidence from which to conclude that sterilization is mandated for Chinese couples returning from the United States with two U.S. citizen children. Nevertheless, Cai contends, in reliance upon Zheng, 549 F.3d 260, that the Board overlooked material evidence. In addition to the documentary evidence previously analyzed in those cases cited by the Board, Cai contends on appeal that she had even more evidence to support her contention that her fear of forced sterilization is well-founded.
In her brief, Cai discusses the State Department’s “Tips for Travelers to the People’s Republic of China,” dated February 14, 2007, which states that China does not recognize dual nationality, App. 1302. Cai notes a news report from the National Population and Family Planning Commission of China, dated April 27, 2006, which discusses the importance of maintaining family planning policies in the future despite the growing gender imbalance, App. 1288-89. Other documents submitted by Cai and not mentioned specifically by either the IJ or the Board consist of western news accounts of Chinese population control policies, including a LifeSiteNews.com article titled “Forced Abortion Still a Reality in China Says New Amnesty Report,” dated May 27, 2005, App. 1652-53, an article from CNN.com titled “Forced abortions for China-Taiwan couples,” dated November 3, 2006, App. 1287, and a New York Times article titled “China Detains Lawyers for Peasants’ Advocate,” dated August 18, 2006, App. 1277-78. See Petitioner’s Brief, at 15-17. Cai points to *599other documentary evidence emanating from government sources. See Petitioner’s Brief, at 17-19.
All of this additional documentary evidence is cumulative of other documentary evidence in the record which the Board adequately considered. There is no indication on this record that the Board overlooked any material, non-cumulative documentary evidence relevant to Cai’s claim for asylum. Therefore, we conclude that the Board’s review of the country conditions evidence in Cai’s case fully comports with Zheng.
With the matter of the Board’s thoroughness resolved, we turn to the merits of Cai’s individualized case for asylum and the documentary evidence specifically discussed by the IJ and Board. We conclude that substantial evidence supports the Board’s conclusion that the evidence submitted does not demonstrate that forcible sterilization is mandated in Fujian province after the birth of a second United States citizen child. As properly noted by the IJ, neither Cai’s aunt nor her sister-in-law bore their children in the United States, and Cai herself knew nothing about the husband who returned from Japan with two children and allegedly was forcibly sterilized, and whose affidavit, App. 1334, was prepared in connection with someone else’s asylum case. Cai contends that the 2007 State Department letter discussed by both the IJ and the Board actually supports her contention that if she returns to China with two children she will be subject to sanctions, but, as the IJ noted, sanctions need not involve forced sterilization, and the letter does not demonstrate that Cai automatically will be subject to sanctions. Rather, the letter states only that parents who choose to register their children as Chinese permanent residents for financial reasons, for example, to obtain a free public education, would not be able to exclude them from the number of children allowed under Chinese family planning policy, App. 1494.
Last, the IJ and the Board explicitly considered an affidavit from Cai’s mother relating to a visit she made at Cai’s request to the local family planning office. The Board gave the affidavit little weight because it contained multiple levels of hearsay, and the IJ was not persuaded by the affidavit because it was not corroborated by any letter from the local authorities themselves. Cai’s mother’s affidavit states in its entirety: “I am the mother of Cai, Shu Rong, who went to family planning of Tan Tou Town to ask if people having two children born in the United States return back to China will be sterilized. The officials of Family Planning told me that each Chinese citizen must obey Chinese Family Planning Policy, giving birth to two children will be sterilized. I asked them to ■write me a proof, but they did not agree to.”
The affidavit constitutes non-cumulative evidence in support of Cai’s claim of a well-founded fear of forced sterilization, but the Board found that it was not reliable and the IJ found that it did not prove Cai’s ease without corroboration. The agency’s findings in this regard “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Having considered the affidavit carefully, we conclude that the record does not compel a contrary conclusion.
Because Cai failed to show past persecution or a reasonable fear of future persecution under the lower burden of proof required for asylum, she is necessarily ineligible for withholding of removal. Cardoza-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. In addition, the record does not compel a conclusion that Cai met her *600burden of establishing that it is more likely than not that she will be tortured upon her return to China, 8 C.F.R. § 1208.16(e)(2). With respect to her remand motion, Cai in her brief points to three ai'ticles which she contends were not previously available at the time of her merits hearing: an article dated January 23, 2007, from CNN.com titled “China Sticking To One Child Policy,” a statement from the National Population and Family Planning Commission, dated December 28, 2006, and an article from the New York Times dated August 18, 2006, titled “China Detains Lawyers for Peasants Advocate.” See Petitioner’s Brief, at 27-28. These items pre-date the merits hearing and were readily available. Thus, the Board did not abuse its discretion in applying 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing”) to deny the remand motion. Moreover, the items break no new ground and merely restate what already has been amply stated in the record.
For the foregoing reasons, we will deny the petition for review.
. The IJ found that, although Cai entered the United States in 2001, and she did not file her asylum application until 2005, the application was not time-barred under INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), because the birth of her second child constituted a "changed circumstance,” see 8 C.F.R. § 1208.4(a)(4)(h).
. On October 23, 2008, the Board reissued its decision because it had been mailed to the wrong address.
. We also rejected the Aird affidavit in Yu, 513 F.3d at 348-49.
. In Shao v. Mukasey, 546 F.3d 138, 165 (2d Cir.2008), the Second Circuit denied the petition for review relating to Matter of S-Y-G-, stating (“[w]hile official documents from Fuji-an Province and Changle City indicate that Chinese nationals who violate birth limits while abroad will be subject to the same punishment as citizens whose violations occur in China, the BIA reasonably observed that these documents made no “referfence] to sterilization, much less forced sterilization,” as a possible punishment”). The court also discussed with approval the Board's decision in Matter of J-W-S-. See Shao, 546 F.3d at 163-64 & n. 26, 172. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475649/ | OPINION
PER CURIAM.
Robert Middleton, proceeding pro se, appeals the District Court’s order granting summary judgment in favor of the Commissioner of Social Security (“Commissioner”) in this disability insurance benefits case. For the reasons that follow, we will affirm.
I.
Because the background of this case is familiar to the parties, we discuss it only briefly here. In June 2001, Middleton applied for Social Security Disability Insurance benefits (“SSDI”), claiming that he had been disabled since May 24, 1995, due to, inter alia, conversion disorder and anxiety.1 After his application was denied ini*601tially and on reconsideration, he requested a hearing before an Administrative Law Judge (“ALJ”). ALJ Steven Slahta held such a hearing in December 2003 and subsequently issued a decision denying Middleton’s application. In March 2006, the Appeals Council denied Middleton’s request to review the ALJ’s decision.
In May 2006, Middleton filed a complaint in the District Court, seeking judicial review of the ALJ’s decision. The court ultimately remanded the case, directing the ALJ to address four issues not sufficiently considered in his original analysis. On remand, a different ALJ — the Honorable George A. Mills, III — held a supplemental hearing and addressed the issues identified by the District Court. In November 2007, ALJ Mills issued an opinion denying Middleton’s application. The ALJ concluded that, although Middleton had a history of pseudo-seizures and had suffered from major depressive disorder and generalized anxiety disorder during the relevant time period, he “was capable of making a successful adjustment to other work that existed in significant numbers in the national economy.” (ALJ Opinion of Nov. 15, 2007, at 15.)
After the Appeals Council denied Middleton’s request for review of ALJ Mills’ decision, Middleton sought review in the District Court. In March 2009, Middleton and the Commissioner filed competing motions for summary judgment. On May 6, 2009, the District Court granted summary judgment in favor of the Commissioner. Middleton now appeals from that order.
II.
We have jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. Although “we exercise plenary review with respect to the order for summary judgment, our review of the ALJ’s decision is more deferential as we determine whether there is substantial evidence to support [it].” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.2000). “Substantial evidence ‘does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). If the substantial evidence supports the ALJ’s findings, “we are bound by those findings, even if we would have decided the factual inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.2001).
Having reviewed the administrative record, we agree with the District Court that ALJ Mills’ decision is supported by substantial evidence. In his informal brief, Middleton appears to argue that ALJ Mills neglected to consider his anxiety, depression, and paranoia. This argument is belied by the record. Middleton also appears to argue that the ALJ downplayed the importance of the disability ratings he received from the Veterans Administration (“VA”). Yet for the reasons given by the District Court, we agree that the ALJ did not err in affording the VA’s disability ratings only limited weight in evaluating Middleton’s application. Middleton’s remaining arguments fail as well.2
Accordingly, we will affirm the District Court’s May 6, 2009 order granting sum*602mary judgment in favor of the Commissioner.
. Middleton subsequently amended his application to change the alleged onset of his disability to May 15, 2001.
. Middleton has waived his bald discrimination claim, for he did not raise it in the proceeding before the District Court. See Med. Protective Co. v. Watkins, 198 F.3d 100, 105 n. 3 (3d Cir.1999). Moreover, to the extent he criticizes the current state of SSDI generally and advocates changes to the system, those issues are outside the scope of this appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475654/ | OPINION
PER CURIAM.
Liu Wen, a Chinese native and citizen, petitions for review of a final order of the Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration Judge (“IJ”) of Wen’s application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). We will deny the petition for review.
Before the IJ, Wen testified that he had suffered past persecution and feared future persecution by the Chinese government as a practitioner of Falun Gong. Wen testified that he began practicing Falun Gong in December 2004 after his uncle introduced him to the practice. A.R. 100. He started by going to gatherings with his uncle in August 2004, but started practicing himself in December, once or twice a week. A.R. 106. He was arrested in February 2005 with seven or eight people, and taken to the police station. Id. He was locked up for a bit over 20 days, during which time he was interrogated and beaten nearly every day. He was released when his parents paid the bail. He was then required to report every Monday, and was occasionally smacked when he did not answer questions about whether he was still practicing. A.R. 108-09. Wen testified that he practiced Falun Gong in the United States once a week in Chinatown, but he was not aware of the address. A.R. 110. He also distributed flyers about Fa-lun Gong in Chinatown about once a week. A.R. 114-15.
On cross-examination, Wen stated that when he was arrested in China, he was in the home of another Falun Gong practitioner by the name of Lin, Zhen Hui. A.R. 116. Wen also mentioned in testimony the names of others who were arrested with him. A.R. 117. Wen noted that his parents told him that the police had been coming to his home in China a few times a month looking for him, but acknowledged that neither his statement in support of his asylum application nor the letters he submitted from his father and uncle said anything about the police looking for him after he left China. A.R. 123-25. Wen also acknowledged that those documents did not mention anything about Wen being hit when he reported to police on Mondays. *610Id. Wen stated that he also practiced Fa-lun Gong at his home in New Jersey and that his roommate was aware of his practice. A.R. 125-26. His roommate took the submitted picture of Wen practicing Falun Gong in Chinatown. A.R. 128. Wen acknowledged that he had not submitted a letter from his roommate attesting to his practice, as his roommate, who lacks immigration status, was afraid to write one. A.R. 126. Wen stated that he did not know the names of the people he practiced Falun Gong with in Chinatown, and that despite the fact he had been practicing once a week since April 2005, he had made no friends among them. A.R. 127-28. Wen acknowledged that when he was arrested at the U.S. border, he told the agents he was afraid of returning to China because he had been smuggled out, but did not mention his Falun Gong practice. A.R. 129-31.
The IJ found Wen’s testimony not credible and also found that Wen failed to provide adequate corroborating evidence to support his application. Specifically, the IJ faulted Wen for failing to provide a letter or affidavit from his roommate in the United States who was aware of his Falun Gong practice. The IJ also noted that Wen could have tried to get corroboration from the owner of the house where he was arrested. The IJ based his adverse credibility finding on “significant omissions,” namely, the fact that neither his father’s letter nor his asylum application said anything about Wen being harmed when he reported to police following his detention, nor about police looking for him. The IJ also took notice that Wen had failed to mention to border officials that he feared returning to China because of his Falun Gong practice. Wen appealed to the BIA which adopted and affirmed the IJ’s decision.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s determinations if they are supported by reasonable, substantial and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, “the BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). Where the BIA substantially adopts the findings of the IJ, we review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
To be granted asylum, Wen must show that he is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Wen must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in China based on one of these protected grounds. Senathi-rajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(A), (C). For relief under the CAT, Wen must demonstrate that it is more likely than not that he would be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
The BIA’s finding that Wen’s testimony was not credible is supported by substantial evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir.2006) (an adverse credibility determination is appropriately based on inconsistent statements and contradictory evidence). The BIA, in upholding the IJ’s credibility determination, relied in part on inconsistencies between Wen’s initial interview with an immigration officer and his testimony before the IJ. In that statement, Wen told *611the immigration officer that he was afraid of returning to China because he had been smuggled out, but did not mention his Falun Gong practice. While we have counseled against placing too much weight on a petitioner’s interview with immigration authorities at the point of entry, see He Chun Chen, 376 F.3d at 223-24, Wen’s statement does not appear to have the type of defects which make such statements unreliable. See Balasubramanrim v. I.N.S., 143 F.3d 157, 163 (3d Cir.1998) (airport statement unreliable where immigrant did not have translator and the interview was not accurately recorded). In any event, the IJ pointed to other reasons for finding Wen’s testimony incredible, including omissions about what happened to him when he reported to the police and whether police were looking for him. Therefore, there is substantial evidence to support the IJ’s adverse credibility determination.
The IJ and the BIA also faulted Wen for failing to provide corroborating evidence to support his testimony. The BIA’s rule regarding corroborating evidence contemplates a three-part inquiry: “1) identification of the facts for which it is reasonable to expect corroboration; 2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if [he] has not, 3) an analysis of whether the applicant has adequately explained [his] failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (citation and quotation omitted).1 Here, the IJ found it significant that Wen failed to provide a statement corroborating his practice of Falun Gong from his roommate. Although Wen’s roommate may have been afraid to appear at the hearing in person, it was not unreasonable for the IJ and the BIA to expect Wen to provide a letter or affidavit from his roommate or from someone else in the United States who was aware of Wen’s Falun Gong practice here. Therefore, substantial evidence supports the IJ and the BIA’s finding that Wen failed to provide sufficient corroborating evidence to support his testimony.
Because Wen cannot satisfy the standard for asylum, he cannot satisfy the higher burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.1991). Nor does the record show that Wen would likely be tortured by or with the acquiescence of a Chinese official. Therefore, he is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc). For the foregoing reasons, we will deny the petition for review.
. The REAL ID Act of 2005, which applies here since Wen filed his application after May 11, 2005, instructs courts to defer to the trier of fact’s determination on corroborating evidence. Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir.2007). The REAL ID Act, however, does not change our rules regarding the IJ's duty to develop the applicant’s testimony in accordance with the Abdulai steps. Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475656/ | OPINION
SLOVITER, Circuit Judge.
Carlos Dominguez (“Dominguez”) appeals the District Court’s grant of summary judgment in favor of Costco Wholesale Corporation (“Costco”). For the reasons stated below, we will affirm.
I.
Costco is a wholesale club that sells retail goods to its members. In May 2004, Costco hired Dominguez as a Loss Prevention Agent at its Wharton, New Jersey, warehouse. Terrence Berry (“Berry”), a Loss Prevention Supervisor who previously worked with Dominguez at another com*613pany, recruited Dominguez for the position and became his supervisor. It was Dominguez’s job to apprehend shoplifters and investigate employee dishonesty. Dominguez investigated as possible employee dishonesty the donation of day-old bakery products to charities from the store’s rear entrance; the taking of lunch breaks by Gelisa Torres (“Torres”), a salaried manager, that Dominguez thought were too long; and the selling of Internet-based “bootlegged” DVDs by a manager to coworkers on store premises.
In Dominguez’s first performance evaluation, a “thirty-day review,” Berry noted that Dominguez needed to improve his attendance and punctuality. Dominguez agreed with Berry’s assessment. In the second performance evaluation, a “ninety-day review,” Berry made the same observation. Dominguez agreed that he was “continuing to have problems with [his] attendance and punctuality....” App. at 109. Berry nevertheless recommended that Dominguez continue to be employed at Costco.
During the ensuing year, Dominguez received five “counseling notices” for various infractions that included reporting late to work five times in March 2005 and seven times in May 2005. Two of these counseling notices were issued by Berry. The May 2005 counseling notice, his fourth, stated that it was the “last and final counseling notice on this issue.” App. at 291. Under Costco’s policy, an employee will be terminated for accumulating four counseling notices within a six-month period. In June 2005, Costco’s warehouse manager, Lorry Janus (“Janus”), issued a fifth counseling notice. Upon realizing that Dominguez had accumulated over four counseling notices in the previous six months, Janus contacted Costco’s regional vice president, Yoram Rubanenko (“Rubanenko”), to request approval to terminate Dominguez’s employment. Rubanenko approved, and Dominguez’s employment was terminated on June 17, 2005.
Dominguez sued Costco under the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J. Stat. Ann. §§ 34:19-1 to -14, alleging that Costco terminated his employment because he had been investigating managers and supervisors for misconduct and reporting his findings to Berry, Torres, and to a regional supervisor. In granting summary judgment in favor of Costco, the District Court held that Dominguez failed to adduce evidence that any of his investigations caused the counseling notices.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This court has jurisdiction under 28 U.S.C. § 1291. The standard of review of a district court’s grant of summary judgment is de novo. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir.2009). A court may grant summary judgment if, drawing all reasonable inferences in favor of the nonmoving party, “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
III.
The New Jersey CEPA is “remedial legislation” meant “to protect employees who report illegal or unethical workplace activities.” Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 751 A.2d 1035, 1038 (2000) (internal citation and quotation omitted). Under CEPA, it is unlawful for an employer to retaliate against an employee because the employee discloses an activity of the employer that the employee reasonably believes is in violation of a law *614or is fraudulent or criminal. N.J. Stat. Ann. § 34:19—8(c). A plaintiff who brings a cause of action under CEPA must demonstrate that (1) he or she reasonably believed that the employer’s conduct violated a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J. Stat. Ann. § 34:19—3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir.2007) (citing Dzwonar v. McDevitt, 177 N.J. 451, 828 A.2d 893, 900 (2003)). A CEPA plaintiff can prove a causal connection through “inferences that the trier of fact may reasonably draw based on circumstances surrounding the employment action....” Maimone v. City of Atl. City, 188 N.J. 221, 903 A.2d 1055, 1064 (2006) (citation omitted). In circumstantial evidence cases, New Jersey courts apply the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. Fleming, 751 A.2d at 1041. The burden of proof to make a prima facie case rests with the plaintiff. Id.
The District Court correctly granted summary judgment based upon a lack of evidence of causation. Dominguez points to no evidence that the decision-makers, Janus and Rubanenko, knew about his investigations when they decided to terminate his employment. In addition, Dominguez points to no evidence that the various managers who issued counseling notices knew about his investigations, with the exception of Berry. However, Berry recruited Dominguez, recommended him for continued employment at Costco, and was not the subject of an investigation. The only manager who issued a counseling notice and was also the subject of an investigation could not have known about it, as Dominguez did not reveal the investigation until after the manager had issued the counseling notice. Dominguez’s argument to the contrary, that Torres must have known because “she saw [him] following her to the office,” Appellant’s Br. at 7 (quoting App. at 587), is based entirely on speculation. Dominguez likewise points to no record evidence that Marc Cibellis, another manager who issued a counseling notice, knew about any investigations.
Dominguez argues that Berry and other managers were motivated to issue him counseling notices because they knew “that other supervisors or managers were guilty of transgressions disclosed by Dominguez which they themselves ... had failed to report to higher authorities,” and, thus, the investigations “presented a potential for serious interference with the continuation of [their] careers.... ” Appellant’s Br. at 27-28. “[Retaliatory motive on the part of non-decision-makers is not enough to satisfy the causation element of a CEPA claim.” Caver v. City of Trenton, 420 F.3d 243, 258 (3d Cir.2005). In any event, Dominguez’s argument rests on the assumption that multiple managers independently issued him counseling notices with a shared purpose of retaliating against him, either as a coincidence or as part of a vast conspiracy. The record does not support such an assumption.
Finally, Dominguez argues that “the timing of events is certainly consistent with a causal nexus” because it was “during this same period, from January to June, 2005, that Dominguez was conducting his investigations.... ” Appellant’s Br. at 29. As an initial matter, Dominguez makes this argument without citation to record evidence. Dominguez could not remember when he conducted certain investigations, and there is no evidence placing the managers’ knowledge of an investiga*615tion in temporal proximity with the issuance of a counseling notice. See App. at 111 (“I can’t remember the exact dates.”). Even if Dominguez conducted investigations from January to June 2005, that does not permit an inference of causation without evidence that the managers knew about those investigations. Dominguez has not met his burden.
IY.
For the above-stated reasons, the judgment of the District Court will be affirmed.1
. Appellee’s Motion for taxation of costs in connection with preparation of the Supplemental Appendix is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475658/ | OPINION OF THE COURT
PER CURIAM.
Petitioner Xin Weng, a native and citizen of China, seeks review of a final order *616of removal. Because we conclude that the Immigration Judge’s (“IJ”) adverse credibility determination is supported by substantial evidence, and that Weng has failed to establish eligibility for relief under the Convention Against Torture (“CAT”), we find no error in the Board of Immigration Appeals’ (“BIA”) decision dismissing Weng’s appeal. As a result, we will deny the petition for review.
I
In August 2006, Weng entered the United States without being admitted or paroled. He was placed in removal proceedings, and he conceded removability. To block his removal, Weng sought asylum, withholding of removal and CAT relief. Weng alleged that, if removed, he would be persecuted on account of his membership in Falun Gong. At a hearing before the IJ, Weng testified that in January 2002, he was arrested in China for distributing Falun Gong literature, and that he was beaten while in detention. He also testified that, while he was incarcerated, village officials attempted to force him to admit that Falun Gong is an evil cult, and that upon his release he was made to stand in place for three hours with a sign around his neck that said “Falun Gong is an evil cult.” Weng testified that a similar incident that occurred in December 2002, when he was arrested for distributing Fa-lun Gong pamphlets, and then stripped of his clothes and beaten with a belt by village officials.
The IJ denied all relief, finding that Weng lacked credibility and sufficient corroboration of his allegations. Alternatively, the IJ found that Weng had failed to demonstrate past persecution on account of his membership in Falun Gong. The IJ also found that Weng could not demonstrate prospective persecution, as “there is nothing in the record to substantiate that the [Weng] is currently a practitioner” of Falun Gong or that he “could not relocate to another part of his country where he would not likely be persecuted.” (A.R.43.) The IJ also found that Weng’s CAT claim was meritless because “he has not submitted ... proof with regard to the [torture] of persons who have left the country illegally.” (A.R.47.) The Board of Immigration Appeals (“BIA”) adopted the IJ’s adverse credibility determination, and dismissed the appeal. Weng filed a petition for review.
II
Our jurisdiction to review final orders of removal is governed by 8 U.S.C. § 1252(a). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[W]hen the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because Weng filed his asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which an adverse credibility finding is based need not go the heart of his claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n. 5 (3d Cir.2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Weng’s demeanor, the plausibility of his story, and on the consistency of his statements. See 8 U.S.C. § 1158(b)(l)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n.7 (3d Cir. 2006).
III
We conclude that the IJ’s adverse credibility determination is supported by substantial evidence. The BIA summarized the bases for the IJ’s adverse credibility determination as follows:
*617(1)the respondent’s asylum application and affidavits from his father and friend provided that he was detained in 2005, while the respondent attested that he was only detained in 2002; (2) it is somewhat implausible that the respondent was in hiding for 3 years before leaving China, as he attested but omitted from his asylum application; and (3) the respondent attested that officials visited the respondent’s father asking about the respondent, but the respondent’s father’s letter makes no mention of this.
(A.R.4.) Weng’s arguments in his brief that the inconsistencies noted by the BIA resulted from either his “narrow understanding in his asylum application,” or from others’ mistakes (“[b]ecause that detention is the Petitioner’s personal experience, and the Petitioner was not aware of the reason why his friend did not provide a correct date of his detention, so [sic] this inconsistency is not the Petitioner’s fault”), are insufficient to demonstrate that the IJ’s adverse credibility determination is not supported by substantial evidence. Weng has also failed to demonstrate eligibility for CAT relief, as he merely alleges that he will be subject to “torture” in passing without much explanation. Moreover, the alleged beatings in detention, for which Weng did not require medical attention, do not rise to the level of “severe physical or mental pain or suffering.” See Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc).
Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471225/ | MEMORANDUM **
Esteban Solano Cruz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. We have jurisdiction pursuant to 8 U.S.C.A. § 1252. We grant the petition for review and remand for further proceedings.
An immigration judge determined that Solano Cruz’s failure to resubmit his fingerprints far enough in advance of his hearing was sufficient reason to deny his application for cancellation of removal. The BIA denied reconsideration of its order dismissing the underlying appeal, concluding that Solano Cruz had adequate notice of the requirements for completing his application. The agency, however, did not have the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir.2008), which held that refusing to continue proceedings for fingerprint processing prior to April 2005 may be an abuse of discretion. We therefore remand for the BIA to reconsider its denial of Solano Cruz’s motion. See id. at 1292-95; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir.2008).
In light of our disposition, we do not reach Solano Cruz’s remaining contentions.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471229/ | MEMORANDUM **
Plaintiffs-Appellants Tongass Conservation Society, Sierra Club, Natural Resources Defense Council, Greenpeace, Inc, Center for Biological Diversity and Casca-dia Wildlands Project appeal the district court’s denial of their request for preliminary injunctive relief against Forrest Cole, in his official capacity as Tongass National Forest Supervisor, the United States Forest Service and the United States Department of Agriculture. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
We express no view on the merits of the complaint. Our sole inquiry is whether the district court abused its discretion in denying preliminary injunctive relief. The Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir.2008); see Winter v. Natural Resources Defense Council, — U.S.—, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (listing factors for district court to consider). We conclude the district court did not abuse its discretion. Accordingly, we affirm the district court’s order denying the preliminary injunction.
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/8471233/ | MEMORANDUM **
This appeal from the district court’s order denying appellant’s motion for a preliminary injunction comes to us for review under Ninth Circuit Rule 3-3. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
We express no view on the merits of the complaint. Our sole inquiry is whether the district court abused its discretion in denying preliminaiy injunction relief. See Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir.2009). We conclude that the district court did not rely on an erroneous legal premise or abuse its discretion in concluding that appellant failed to demonstrate a likelihood of success as to its claim that Hawaiian Airlines unlawfully violated the Railway Labor Act, and in denying preliminary injunctive relief. See id. Accordingly, we affirm the district court’s order denying the preliminary injunction.
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/8472716/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Johnson, III, appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Johnson v. Pendergraph, No. 3:09-cv-00305-GCM, 2009 WL 2246741 (W.D.N.C. July 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475657/ | OPINION OF THE COURT
PER CURIAM.
Petitioner Xin Weng, a native and citizen of China, seeks review of a final order *616of removal. Because we conclude that the Immigration Judge’s (“IJ”) adverse credibility determination is supported by substantial evidence, and that Weng has failed to establish eligibility for relief under the Convention Against Torture (“CAT”), we find no error in the Board of Immigration Appeals’ (“BIA”) decision dismissing Weng’s appeal. As a result, we will deny the petition for review.
I
In August 2006, Weng entered the United States without being admitted or paroled. He was placed in removal proceedings, and he conceded removability. To block his removal, Weng sought asylum, withholding of removal and CAT relief. Weng alleged that, if removed, he would be persecuted on account of his membership in Falun Gong. At a hearing before the IJ, Weng testified that in January 2002, he was arrested in China for distributing Falun Gong literature, and that he was beaten while in detention. He also testified that, while he was incarcerated, village officials attempted to force him to admit that Falun Gong is an evil cult, and that upon his release he was made to stand in place for three hours with a sign around his neck that said “Falun Gong is an evil cult.” Weng testified that a similar incident that occurred in December 2002, when he was arrested for distributing Fa-lun Gong pamphlets, and then stripped of his clothes and beaten with a belt by village officials.
The IJ denied all relief, finding that Weng lacked credibility and sufficient corroboration of his allegations. Alternatively, the IJ found that Weng had failed to demonstrate past persecution on account of his membership in Falun Gong. The IJ also found that Weng could not demonstrate prospective persecution, as “there is nothing in the record to substantiate that the [Weng] is currently a practitioner” of Falun Gong or that he “could not relocate to another part of his country where he would not likely be persecuted.” (A.R.43.) The IJ also found that Weng’s CAT claim was meritless because “he has not submitted ... proof with regard to the [torture] of persons who have left the country illegally.” (A.R.47.) The Board of Immigration Appeals (“BIA”) adopted the IJ’s adverse credibility determination, and dismissed the appeal. Weng filed a petition for review.
II
Our jurisdiction to review final orders of removal is governed by 8 U.S.C. § 1252(a). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[W]hen the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because Weng filed his asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which an adverse credibility finding is based need not go the heart of his claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n. 5 (3d Cir.2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Weng’s demeanor, the plausibility of his story, and on the consistency of his statements. See 8 U.S.C. § 1158(b)(l)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n.7 (3d Cir. 2006).
III
We conclude that the IJ’s adverse credibility determination is supported by substantial evidence. The BIA summarized the bases for the IJ’s adverse credibility determination as follows:
*617(1)the respondent’s asylum application and affidavits from his father and friend provided that he was detained in 2005, while the respondent attested that he was only detained in 2002; (2) it is somewhat implausible that the respondent was in hiding for 3 years before leaving China, as he attested but omitted from his asylum application; and (3) the respondent attested that officials visited the respondent’s father asking about the respondent, but the respondent’s father’s letter makes no mention of this.
(A.R.4.) Weng’s arguments in his brief that the inconsistencies noted by the BIA resulted from either his “narrow understanding in his asylum application,” or from others’ mistakes (“[b]ecause that detention is the Petitioner’s personal experience, and the Petitioner was not aware of the reason why his friend did not provide a correct date of his detention, so [sic] this inconsistency is not the Petitioner’s fault”), are insufficient to demonstrate that the IJ’s adverse credibility determination is not supported by substantial evidence. Weng has also failed to demonstrate eligibility for CAT relief, as he merely alleges that he will be subject to “torture” in passing without much explanation. Moreover, the alleged beatings in detention, for which Weng did not require medical attention, do not rise to the level of “severe physical or mental pain or suffering.” See Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc).
Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471228/ | MEMORANDUM **
Huaxin Pang, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny in part and dismiss in part the petition for review.
In his opening brief, Pang fails to address, and therefore has waived any challenge to, the BIA’s April 28, 2006 deci*349sion denying reopening. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues which are not specifically raised and argued in a party’s opening brief are waived).
We lack jurisdiction to review the BIA’s underlying order dismissing Pang’s direct appeal from the immigration judge’s decision because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471230/ | MEMORANDUM **
Plaintiffs-Appellants Tongass Conservation Society, Sierra Club, Natural Resources Defense Council, Greenpeace, Inc, Center for Biological Diversity and Casca-dia Wildlands Project appeal the district court’s denial of their request for preliminary injunctive relief against Forrest Cole, in his official capacity as Tongass National Forest Supervisor, the United States Forest Service and the United States Department of Agriculture. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
We express no view on the merits of the complaint. Our sole inquiry is whether the district court abused its discretion in denying preliminary injunctive relief. The Lands Council v. McNair, 537 F.3d 981, 986 (9th Cir.2008); see Winter v. Natural Resources Defense Council, — U.S.—, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008) (listing factors for district court to consider). We conclude the district court did not abuse its discretion. Accordingly, we affirm the district court’s order denying the preliminary injunction.
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/8471232/ | MEMORANDUM **
Bryan John Trinidad appeals from the 78-month sentence imposed following his guilty-plea conviction for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Trinidad contends that the district court did not adequately address the 18 U.S.C. § 3553(a) factors, and that his sentence is unreasonable.
The record reflects that the district court adequately explained its decision, see United States v. Perez-Perez, 512 F.3d 514, 516 (9th Cir.2008), and the sentence was reasonable, see United States v. Cherer, 513 F.3d 1150, 1160-61 (9th Cir.2008).
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/8471234/ | MEMORANDUM **
This appeal from the district court’s order denying appellant’s motion for a preliminary injunction comes to us for review under Ninth Circuit Rule 3-3. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
We express no view on the merits of the complaint. Our sole inquiry is whether the district court abused its discretion in denying preliminaiy injunction relief. See Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir.2009). We conclude that the district court did not rely on an erroneous legal premise or abuse its discretion in concluding that appellant failed to demonstrate a likelihood of success as to its claim that Hawaiian Airlines unlawfully violated the Railway Labor Act, and in denying preliminary injunctive relief. See id. Accordingly, we affirm the district court’s order denying the preliminary injunction.
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/8475659/ | OPINION
PER CURIAM.
Petitioner Asan Oh is an ethnic-Chinese Christian and a citizen of Indonesia. He entered the United States in 2001 with a visitor’s visa, which he overstayed. Oh received a notice to appear and, before the IJ, conceded removability and sought asylum and related relief. Oh alleged that he would be singled out for persecution as an ethnic-Chinese Christian and that there is a pattern or practice of persecution against ethnic-Chinese Christians in Indonesia. The IJ denied relief, but granted Oh voluntary departure. Oh appealed to the BIA, arguing only that the IJ erred in determining that there is no pattern or practice of persecution against ethnic-Chinese Christians. The Board dismissed the appeal, and Oh filed a petition for review.
We have jurisdiction over Oh’s petition pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we review the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence, and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). We review legal questions de novo, subject to established principles of deference. See Cospito v. Att’y Gen., 539 F.3d 166, 171 (3d Cir.2008).
*619In his petition for review, Oh raises only one argument: that the IJ erred by failing to consider at all whether there is a pattern or practice of persecution against ethnic-Chinese Christian Indonesians. The Government’s response is two-fold. First, the Government argues that we lack jurisdiction to entertain Oh’s petition for review because he did not exhaust this argument before the BIA. Second, even if we have jurisdiction, we should deny the petition for review because Oh’s argument lacks merit.
We “may review a final order of removal only if [ ] the alien has exhausted all administrative remedies available to the alien as of right____” 8 U.S.C. § 1252(d)(1). A petitioner is deemed to have exhausted all administrative remedies if he raises all issues before the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir.2008). However, we do not apply this principle in a draconian fashion. See id. at 121. “Indeed, ‘so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.’ ” Id. (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006) (internal quotation marks omitted)). Here, the Government distinguishes between Oh’s argument to the BIA that the IJ erred in his determination regarding a pattern or practice of persecution and Oh’s argument in his petition for review, which alleges a lack of any such consideration, and argues that the latter claim was not exhausted. We conclude that the latter argument is sufficiently related to that in his BIA appeal to satisfy the exhaustion requirement. Moreover, the issue is exhausted because the BIA implicitly considered the extent of the IJ’s “pattern or practice” analysis in evaluating Oh’s claim. See Lin, 543 F.3d at 123-24 (holding that an issue is exhausted if the BIA considers it sua sponte).
Nevertheless, we agree with the Government that Oh’s argument plainly lacks merit. Indeed, the IJ devoted a substantial portion of his oral decision to discussing conditions for ethnic-Chinese Christians within Indonesia, as well as to canvassing BIA and Circuit law on the existence of a pattern or practice of persecution. See A.R. 116-25. That even a cursory reading of the IJ’s opinion could give rise to an argument that no such consideration occurred is perplexing and, more fundamentally, wrong.
Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471235/ | MEMORANDUM **
Jose Angel Miramontes-Cigarroa, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and reconsider the underlying *353denial of his application for cancellation of removal.
The BIA did not abuse its discretion in denying petitioner’s motion to reopen because he failed to offer any new or previously unavailable evidence. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. §§ 1003.2(a) & (c). The BIA did not abuse its discretion in denying petitioner’s motion to reconsider because he failed to identify any error of law or fact in the BIA’s prior decision. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1). Finally, petitioner has failed to state a color-able equal protection claim. See Masnauskas v. Gonzales, 432 F.3d 1067, 1070-71 (9th Cir.2005); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir.2002).
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/8471237/ | MEMORANDUM **
In these consolidated eases, Mussie Es-tifanos, a native and citizen of Ethiopia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture No. 08-70844, and the BIA order denying his motion to reopen and reconsider No. 08-71903.
In petition No. 08-70844, the government requests remand for the BIA to address in the first instance whether the IJ failed to consider the “totality of the circumstances” under the standard set forth by the REAL ID Act with respect to adverse credibility determinations, and to also address Estifanos’ due process contentions regarding the IJ’s reliance on investigative reports submitted by the government. We grant the request. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). The court orders that Estifanos’ removal is stayed pending a decision by the BIA in this matter.
We deny as moot the petition for review of the BIA’s March 31, 2008 order denying Estifanos’ motion to reopen and reconsider.
The parties shall each bear their own costs on appeal.
No. 08-70844: PETITION FOR REVIEW GRANTED; REMANDED.
No. 08-71903: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*355ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471239/ | MEMORANDUM **
Clara Luz Ovalle Lopez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying her motion to reopen deportation proceedings that were conducted in absentia. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny the petition for review.
The record indicates that Ovalle Lopez was personally served with the Order To Show Cause, which warned of the consequences for failing to appear in both English and Spanish, and Ovalle Lopez did not deny receiving notice of her scheduled hearing. The IJ therefore did not abuse his discretion in denying the motion to reopen where the motion was filed more than 12 years after the IJ’s June 21, 1995 order, see 8 C.F.R. § 1003.23(b)(4)(iii)(A)(l), and Ovalle Lopez failed to establish that she acted with the due diligence required for equitable tolling, *356see Itumbarria, 321 F.3d at 897 (equitable tolling available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”).
In light of our disposition, we do not reach Ovalle Lopez’s remaining contentions.
PETITION FOR REVIEW DENIED.
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/8471241/ | MEMORANDUM **
Jaime Leonel Monterroso, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, *357and review de novo claims of due process violations. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The BIA did not abuse its discretion in denying the motion to reopen as untimely because the motion was filed more than 9 years after the BIA’s August 28, 1998 order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Monterroso failed to establish grounds for equitable tolling, see Iturribania, 321 F.3d at 897 (equitable tolling available where a “petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”); see also Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir.2004) (compliance with requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) generally enforced where alleged ineffective assistance of counsel is not “obvious and undisputed on the face of the record”).
Monterroso’s contentions that the BIA abused its discretion and violated due process by prematurely denying his motion to reopen are unavailing. Cf. Yeghiazaryan v. Gonzales, 439 F.3d 994, 1000 (9th Cir.2006) (BIA abused its discretion and violated due process in denying fully supported motion to reconsider where skeletal but timely protective motion to reopen was denied prior to the expiration of the 90-day filing period for failure to submit supporting evidence).
PETITION FOR REVIEW DENIED.
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/8471346/ | MEMORANDUM **
Roberto Vargas appeals from his guilty-plea conviction and 87-month sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Vargas’ 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/8471348/ | MEMORANDUM **
Martin Guzman-Guzman appeals from his conviction and sentence for being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Guzman-Guzman contends that the district court erred by denying his motion to dismiss the indictment, because the entry of the underlying 1997 removal order and the subsequent 2001 reinstatement of the removal order violated his due process rights. Guzman-Guzman’s due process challenge to the reinstated removal order is foreclosed. See MoralesIzquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir.2007) (en banc). Because Guzman-Guzman challenges his conviction, his collateral attack on the 1997 removal order is not rendered moot by his removal to Mexico. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1063-64 (9th Cir.2004) (holding that, because deported defendant might return to this country, deportation does not preclude effectual relief); see also Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir.2005) (holding that prospect of collateral consequences resulting from a criminal conviction establishes a live controversy).
To sustain a collateral attack on a removal order in a subsequent criminal proceeding, a defendant must demonstrate that his due process rights were violated by defects in the underlying removal proceeding, and that he suffered prejudice as a result. See 8 U.S.C. § 1326(d); United States v. Becerril-Lopez, 541 F.3d 881, 885 (9th Cir.2008). At the time of the 1997 removal order, Guzman-Guzman’s state conviction for delivery of a controlled substance qualified as an aggravated felony under the Immigration and Nationality Act (the “INA”), and the Immigration Judge erred by failing to advise him of the possibility of his eligibility for discretionary relief under section 212(c) of the INA. See 8 U.S.C. § 1101(a)(43)(B) (1996) (defining “aggravated felony” to include a drug trafficking crime, without regard to the length of the sentence imposed); United States v. Leon-Paz, 340 F.3d 1003, 1006-07 (9th Cir.2003); see also INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that the elimination of § 212(c) relief could not be retroactively applied to an alien who was convicted for an offense that would have made him eligible to seek such relief).
Nevertheless, Guzman-Guzman must still demonstrate prejudice, by show*436ing that he had “plausible grounds” for a discretionary grant of relief. See Becerril-Lopez, 541 F.3d at 886. Guzman-Guzman has failed to meet his burden because neither his motion to dismiss in district court nor his opening brief offer any support for the discretionary grant of § 212(c) relief. The district court therefore did not err by denying the motion to dismiss the indictment. See id.
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/8471236/ | MEMORANDUM **
Jose Angel Miramontes-Cigarroa, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and reconsider the underlying *353denial of his application for cancellation of removal.
The BIA did not abuse its discretion in denying petitioner’s motion to reopen because he failed to offer any new or previously unavailable evidence. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. §§ 1003.2(a) & (c). The BIA did not abuse its discretion in denying petitioner’s motion to reconsider because he failed to identify any error of law or fact in the BIA’s prior decision. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(1). Finally, petitioner has failed to state a color-able equal protection claim. See Masnauskas v. Gonzales, 432 F.3d 1067, 1070-71 (9th Cir.2005); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir.2002).
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/8471242/ | MEMORANDUM **
Jaime Leonel Monterroso, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, *357and review de novo claims of due process violations. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The BIA did not abuse its discretion in denying the motion to reopen as untimely because the motion was filed more than 9 years after the BIA’s August 28, 1998 order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Monterroso failed to establish grounds for equitable tolling, see Iturribania, 321 F.3d at 897 (equitable tolling available where a “petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”); see also Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir.2004) (compliance with requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) generally enforced where alleged ineffective assistance of counsel is not “obvious and undisputed on the face of the record”).
Monterroso’s contentions that the BIA abused its discretion and violated due process by prematurely denying his motion to reopen are unavailing. Cf. Yeghiazaryan v. Gonzales, 439 F.3d 994, 1000 (9th Cir.2006) (BIA abused its discretion and violated due process in denying fully supported motion to reconsider where skeletal but timely protective motion to reopen was denied prior to the expiration of the 90-day filing period for failure to submit supporting evidence).
PETITION FOR REVIEW DENIED.
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/8471350/ | ORDER
A majority of the panel votes to grant, in part, the petition for rehearing. The memorandum disposition filed on March 19, 2009, 320 FedAppx. 503, is amended. An amended memorandum disposition will be filed concurrently with this order. A petition for rehearing directed toward the amended memorandum may be filed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475664/ | OPINION
SLOVITER, Circuit Judge.
This appeal challenges the District Court’s grant of partial summary judgment based upon the New York in pari delicto doctrine. Because the parties have settled all remaining issues, the matter is ripe for appeal. For the reasons stated below, we will affirm.
I.
Oakwood Homes Corporation (“Oak-wood”) produced and sold manufactured homes, the purchasers of which were often low-income individuals with poor credit. In the 1990s, Oakwood expanded its business to include mortgage financing. Oak-wood retained Merrill Lynch to securitize the payment streams on the mortgage loans that it financed. Securitization is a process by which expected payment streams are pooled together and restructured into securities, which are then sold to investors. By securitizing the payment streams, Oakwood was able to obtain liquidity to fund its operations. In 1994, Oakwood retained Appellee Credit Suisse (“Credit Suisse”) to perform future periodic securitizations. Oakwood accomplished the securitizations in the ordinary course of business with the tacit approval of its Board of Directors, which was comprised of legal and business professionals from real estate development companies, law firms, and investment banks. By the late 1990s, Oakwood’s annual revenue grew to nearly $1 billion.
Oakwood’s business deteriorated in 1999 when the market for manufactured housing collapsed and purchasers began to default on their loans. Oakwood incurred costs in repossessing, refurbishing, and refinancing the homes. Meanwhile, investor demand for Oakwood’s securities was waning, and Oakwood had a surplus of unsold home inventory at its sales centers and factories. Oakwood’s Chief Financial Officer “emphasized [unfavorable] current market conditions ... and uncertainty with regard to [Oakwood] existing in the marketplace.” App. at 774-75. Ratings agencies questioned Oakwood’s creditworthiness and downgraded its credit rating. Oakwood announced operating losses in its SEC filings and in press releases.
Facing a liquidity shortage, Oakwood contacted Credit Suisse in late 1999 and proposed a stop-gap financing transaction that would provide Oakwood with immediate liquidity. In assessing the proposed transaction, James Xanthos of Credit Suisse prepared an internal memorandum (the “Xanthos Memo”) that summarized Oakwood’s credit risk. The Xanthos Memo discussed the deteriorating market conditions, mentioned the risk of bankruptcy, and recommended against the transaction. The Xanthos Memo was consistent with the market’s unfavorable perception of Oakwood: its stock was trading at about a quarter of its book value. Oak-wood was not given a copy of the Xanthos Memo, a fact it emphasizes in its brief. However, the proposed transaction discussed in the Xanthos Memo never materialized.
At the end of 2000, Credit Suisse was “the only game in town” that was willing to provide stop-gap financing for Oakwood. App. at 2141. Oakwood negotiated a financing package with Credit Suisse. *625Douglas Muir, who had been an Oakwood officer with responsibility over Oakwood’s securitization program, testified that the financing package “was in [Oakwood’s] best interests,” and that Oakwood’s Board agreed. App. at 2141. The financing enabled Oakwood to maintain “business as usual,” i.e., to continue its periodic securiti-zations. App. at 1557. As one of Oak-wood’s Board members described, “[t]he securitization program had been an integral part of [Oakwood’s] operation for a long time.... [T]he [B]oard was fully aware of how the [securitization] program operated, how it was doing and at no time undertook to mandate the discontinuance of it.” App. at 1391.
In 2001, Oakwood turned to Credit Suisse again to facilitate a short-term financing transaction. Oakwood “ultimately closed a transaction that was — that worked for everyone,” according to Muir. App. at 2136. Later that year, Credit Suisse negotiated a different transaction to re-securitize and sell some of Oakwood’s most subordinated securities at a fraction of their par value. “It was the unanimous consensus of [Oakwood’s] Board that the transaction be completed.” App. at 810. Oakwood tried to stem the rising tide of defaults by diverting loans into its existing loan assumption program, but the effort resulted in “significant adverse liquidity effects.” App. at 891. Although Credit Suisse “on occasion” corresponded with Oakwood and its attorneys regarding various transactions and issues, Credit Suisse did not control Oakwood or tell it what to do. App. at 1535. Indeed, Oakwood did not formally engage Credit Suisse as its financial adviser until after the events at issue.
On November 15, 2002, Oakwood filed for bankruptcy under 11 U.S.C. §§ 101, et seq. It stated that it did so “based primarily upon the continued poor performance of loans originated, the extremely weak conditions in the manufactured housing industry and the deteriorating financial terms in the asset-backed securitization market,” in addition to “the general economic recession.” App. at 445-46. Oakwood moved for permission in the Bankruptcy Court to continue engaging in the securitizations and other financing transactions with Credit Suisse. In support thereof, Oak-wood asserted that “[historically, securiti-zation transactions have provided the most effective and least expensive financing technique for satisfying [Oakwood’s] tremendous liquidity needs.” App. at 182. “In fact,” Oakwood noted, “[Oakwood] historically made a material profit on its secu-ritization transactions,” and “[a]lthough that profit has been reduced or even eliminated, the securitization transactions ... still remain the least expensive method for financing [Oakwood’s] operations.” App. at 182. The court granted Oakwood’s motion.
On November 13, 2004, Oakwood’s successor-in-interest (a liquidation trust, which is the Appellant in this appeal) objected to proofs of claim filed by Credit Suisse in the Bankruptcy Court and asserted, inter alia, counterclaims of common law negligence, breach of fiduciary duty, and breach of implied contract.1 *626Oakwood alleged, and continues to allege, that Credit Suisse knew the transactions it was structuring were “value-destroying” and “would eventually drive Oak-wood into bankruptcy,” and that Credit Suisse “never bothered to undertake further due diligence about the effects of those transactions, never conveyed its superior understanding of the transactions to Oakwood, and never behaved in accordance with the fiduciary position it had assumed by refusing to participate in further value destruction.” Appellant’s Br. at 6. Oakwood sought $50 million for the diminution in the value of its assets and $21 million in fees that it paid to Credit Suisse for the transactions. The Bankruptcy Court held that Oakwood was entitled to a jury trial on these claims, see In re Oakwood Homes Corp., 378 B.R. 59, 73 (Bankr.D.Del.2007), and the bankruptcy reference was withdrawn so that the ease could be heard in the District Court.
In the District Court, Credit Suisse filed a motion for partial summary judgment which the Court granted based on the in pari delicto doctrine. The bankruptcy claims were referred back to the Bankruptcy Court, where the parties reached a settlement. Oakwood brought this appeal challenging the District Court’s grant of partial summary judgment on the common law claims.2
II.
We review a district court’s decision to grant summary judgment de novo, and we apply the same standard the district court should have applied in determining whether summary judgment was appropriate. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir.2009) (citation omitted). Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). “In reviewing the District Court’s grant of summary judgment, we view the facts in a light most favorable to the nonmoving party,” in this case, Oakwood. Busch v. Marpie Newtown Sch. Dist., 567 F.3d 89, 95 n. 7 (3d Cir.2009) (citations omitted).
III.
The doctrine of in pari delicto refers to “[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.” Black’s Law Dictionary (8th ed.2004). It derives from the Latin, in pari delicto potior est conditio defenden-tis: “In case of equal or mutual fault ... the position of the [defending] party ... is the better one.” Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) (quotation and citation omitted). The doctrine is recognized as a defense under New York common law.3 See Jackson v. Assoc. Dry Goods Corp., 13 N.Y.2d 112, 242 N.Y.S.2d 210, 192 N.E.2d 167, 170 (1963), overruled on other grounds by D Ambrosio v. City of N.Y., 55 N.Y.2d 454, 450 N.Y.S.2d 149, 435 N.E.2d 366, 369 (1982); Abright v. Shapiro, 214 A.D.2d 496, 626 N.Y.S.2d 73, 74 (App.Div.1995). Under *627New York law, the in pari delicto doctrine “does not necessarily apply where there is a difference in the quality of the fault.” Iroquois Gas Corp. v. Int’l Ry. Co., 240 A.D. 432, 270 N.Y.S. 197, 198 (App.Div.1934); see also McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 757 (3d Cir.1990) (noting that a court “may not forbid recovery [on grounds of in pari delicto ] on account of a plaintiffs activities in a separate setting”) (citation omitted).
Oakwood’s negligence and implied contract claims do not survive summary judgment under New York’s in pari delic-to doctrine. During the relevant time period, Oakwood decided to use securitization transactions to bolster its liquidity as it had done successfully throughout the 1990s. The decision to do so came from Oakwood and its Board of sophisticated business and legal professionals, who recognized that the transactions were in Oak-wood’s best interest. The District Court aptly observed that Oakwood’s allegations “are entirely based on [its] financing strategies and transactions, all of which were authorized and directed by Oakwood’s Board and Management....” App. at 74. Even after declaring bankruptcy, Oakwood asked the Bankruptcy Court for permission to continue the transactions as “the most effective and least expensive financing technique for satisfying [Oakwood’s] tremendous liquidity needs.” App. at 182. That Credit Suisse provided Oakwood with the mechanism for carrying out this aspect of its business plan does not lessen Oak-wood’s culpability. As the District Court noted, Credit Suisse merely “assisted Oak-wood’s implementation of its ‘flawed’ business plan by structuring and executing these transactions, transactions which provided the liquidity necessary for Oak-wood’s continued operation, exactly what Oakwood employed Credit Suisse to do.” App. at 65-66. To the extent the financing decisions were blameworthy, Oakwood was at least as culpable as Credit Suisse: Oak-wood routinely approved the “value-destroying” transactions as an appropriate way to raise liquidity when the company was in financial turmoil. The in pari de-licto doctrine bars the claims. See, e.g., Granite Partners, L.P. v. Bear, Stearns & Co., 17 F.Supp.2d 275, 309 (S.D.N.Y.1998) (finding that in pari delicto bars claim by investment funds against broker-dealers under New York law where “[t]he Funds were active and voluntary participants in the securities purchases about which they now complain”); Buechner v. Avery, 38 A.D.3d 443, 836 N.Y.S.2d 1, 2-3 (App.Div. 2007) (finding that in pari delicto bars claim “based upon the cooperation of the management ... with defendant third parties in committing the alleged wrongs”).
Oakwood seeks to avoid the consequences of in pari delicto by arguing that Credit Suisse was an “insider.” Appellant’s Br. at 39. The in pari delicto doctrine generally does not apply when one party controls the other — the so-called “insider” exception4 — because it would allow a defendant that controlled a plaintiff to avoid liability by blaming the plaintiff it controlled. See, e.g., Kalb, Voorhis & Co. v. Am. Fin. Corp., 8 F.3d 130, 133 (2d Cir.1993) (noting, under Texas law, that “where the parties do not stand on equal terms and one party controls the other, the in pari delicto doctrine does not apply”). New York courts have recognized the exception. See, e.g., Buechner, 836 N.Y.S.2d at 3; see also Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 497 *628N.Y.S.2d 898, 488 N.E.2d 828, 829-30 (1985) (recognizing similar exception in the context of an agent who defrauds his principal). Credit Suisse was not an “insider” for purposes of in pari delicto because Oakwood retained total control over its decisions. The undisputed evidence above, and the deposition testimony recited at length by the District Court, demonstrate Oakwood’s control over its decision-making process.
Oakwood’s reliance on a bankruptcy definition of “insider” is misplaced. See Schubert v. Lucent Techs., Inc. (In re Winstar Commc’ns, Inc.), 554 F.3d 382, 395 (3d Cir.2009). In Schubert, we considered the meaning of “insider” under the Bankruptcy Code, 11 U.S.C. § 101(31)(B). Id. The Bankruptcy Code provides that a trustee can avoid the transfer of property interests from a debtor to an “insider.” 11 U.S.C. § 547(b)(4)(B). We noted that when Congress defined “insider” in § 101(31), it used language to indicate “a category of creditors, sometimes called ‘non-statutory insiders,’ who fall within the definition but outside of any of the enumerated categories.” Schubert, 554 F.3d at 395. We thus rejected the argument that only a “person in control” could be an insider, holding that “the question is whether there is a close relationship [between debtor and creditor] and ... anything other than closeness to suggest that any transactions were not conducted at arm’s length.” Id. at 396-97 (citations and quotations omitted). The reasoning in Schubert does not apply to the meaning of “insider” under New York’s in pari delicto doctrine. The justification for the doctrine here is not based on the statutory provision or legislative history. Instead, the justification relates to the control that others exert over a corporation that does not act on its own.
IY.
The in pari delicto doctrine does not apply to Oakwood’s breach of fiduciary duty claim. With regard to this claim, the alleged wrongdoing is Credit Suisse’s failure to provide its opinion about the transactions with Oakwood, and summary judgment was warranted because of a lack of proximate causation. According to a member of Oakwood’s Board, the Board was “fully aware” of the securitizations and how they operated as an “integral part of [Oakwood’s] operation,” and the Board “at no time undertook to mandate the discontinuance of [the transactions].” App. at 2221. Credit Suisse did not divest Oak-wood of its decision-making authority, and there is no testimony that Oakwood would have changed its business plan had Credit Suisse actually offered its advice. Moreover, Oakwood attributed its bankruptcy to “extremely weak [market] conditions”— not to any supposed “value-destroying” transactions. App. at 445. The undisputed facts undermine a proximate causal link between Credit Suisse’s omissions and Oakwood’s injury. See LNC Invs., Inc. v. First Fid. Bank, N.A., 173 F.3d 454, 465 (2d Cir.1999) (“[W]here damages are sought for breach of fiduciary duty under New York law, the plaintiff must demonstrate that the defendant’s conduct proximately caused injury in order to establish liability.”) (citations omitted); Northbay Const. Co. v. Bauco Const. Corp., 38 A.D.3d 737, 832 N.Y.S.2d 280, 281 (App.Div.2007) (noting same). A reasonable jury could not find in favor of Oakwood.
y.
For the above-stated reasons, the judgment of the District Court will be affirmed.
. Although Oakwood's successor-in-interest brought the action underlying this appeal, we refer to the successor-in-interést as "Oak-wood” for ease of reference. Doing so does not affect our analysis. See Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co., 267 F.3d 340, 357 (3d Cir.2001) (holding that as a matter of federal bankruptcy law, the debtor-in-possession succeeds to the claims and defenses of the debtor as they existed at the filing of the bankruptcy petition, including any in pari delicto defenses that may be asserted against it). We recognize that this is a minority view as it relates to the in pari delicto doctrine. See Official Comm. of Unsecured Creditors of AHERF v. Pricewaterhouse-Coopers, LLP, No. 07-1397, 2008 WL 3895559, at *5 (3d Cir. July 1, 2008) (noting, *626in a certification of question of law to the Pennsylvania Supreme Court, that “Lafferty’s view of in pari delicto is a minority one”). However, we are bound by our precedent.
. The District Court had jurisdiction under 28 U.S.C. § 1334(b) and 157(d). We have jurisdiction under 28 U.S.C. § 1291.
. The parties do not dispute the District Court’s determination that New York law applies.
. The exception derives from the fact that corporations act through their directors, officers, and controlling stockholders. See generally Unencumbered Assets, Trust v. JP Morgan Chase Bank (In re Nat’l Century Fin. Enter., Inc., Inv. Litig.), 617 F.Supp.2d 700, 712-13 (S.D.Ohio 2009) (collecting cases). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475666/ | OPINION
PER CURIAM.
Tulsi Patel petitions for review of the order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen. We will deny the petition.
I.
Patel is a citizen of India. He entered the United States without inspection in 1995, and the Government detained him in Arizona and filed an order to show cause *630charging him as deportable on that basis.1 While Patel was in custody, the Government served him with notice of the order to show cause, which advised him of his responsibility to inform the Immigration Court of any change of address. (A.233.) Patel’s initial hearing was scheduled for December 11,1995. On December 8,1995, Patel posted bond and listed a Ramanbhati Patel with an address in West New York, New Jersey, as the person with whom he would be living. (A.222.) The bond notice states that an Immigration and Naturalization Services officer again reminded Patel before his release of his obligation to notify the Immigration Court of any change of address. (Id.)
Patel was represented by counsel at the time. On December 12, 1995, his counsel filed a motion to change venue to the Immigration Court in Newark, New Jersey. That motion listed Patel’s new address as an address in Guttenberg, New Jersey. (A.215.) An Immigration Judge (“IJ”) granted the motion, and Patel’s initial hearing was later rescheduled. The Immigration Court sent notice of the rescheduled hearing date and all future correspondence by certified mail to Patel’s Guttenberg address. All correspondence was addressed to Tulsi Patel, “c/o Raman-bhati Patel,” the person whose West New York address Patel had given in the bond notice. Patel failed to appear for the rescheduled hearing, then failed to appear for at least four other rescheduled hearings after that. An IJ ultimately ordered him deported in absentia in July 1999.
Over seven years later, in September 2006, Patel filed a motion under former 8 U.S.C. § 1252b(c)(3)(B) to rescind the in absentia deportation order on the grounds that he never received notice of any of the rescheduled hearing dates. (A.56-60.) Patel alleged that, after his release on bond, he moved to an address in West New York different from the one listed on his bond notice, then moved three more times during the relevant time period. He noted that the Immigration Court sent all correspondence to him at the Guttenberg address “c/o Ramanbhati Patel,” but did not assert any error in that regard. Instead, he simply asserted that he never received it. He also argued that he should not have been expected to notify the Immigration Court of his changes of address because the notice of the order to show cause, which advised him of that requirement, was not printed or read to him a language he understood. He further asserted that he had since become eligible to adjust his status as a derivative beneficiary of an adjustment of status application filed by his wife. Patel claimed to have discovered the in absentia deportation order after filing a request under the Freedom of Information Act, but did not say when.
By decision issued October 4, 2006, the IJ denied Patel’s motion. (A.105-07.) The IJ noted that Patel never denied residing at the Guttenberg address where the correspondence had been sent and never contacted the Immigration Court either to notify it of his subsequent changes of address or to ascertain the status of his case. Patel appealed to the BIA, and the BIA dismissed his appeal on December 18, 2007, 2007 WL 4711411. (A.34-35.) The BIA noted that Patel’s argument regarding the order to show cause “might have some force” if he were not represented by counsel at the time. (A.35.) The BIA explained, however, that Patel had been represented by counsel, who secured a change *631of venue and provided an updated address, and that Patel alleged neither that his counsel rendered ineffective assistance nor that he was actually unaware of his obligation to notify the Immigration Court of any change of address. The BIA further concluded that the aspect of Patel’s motion based on his potential eligibility to adjust status was untimely but that he had not shown prima facie eligibility to adjust status in any event.
Patel did not petition for review. Instead, on November 7, 2008, he filed a second motion with the BIA, captioned as “motion to reopen in absentia order.” (A.ll-13.) This time, Patel argued that he had been living at the Guttenberg address, but that the Immigration Court erred in sending correspondence to him there “c/o Ramanbhati Patel.” Patel argued that there were a number of people of Indian descent living at that address with similar names, and that use of the “c/o” name must have been what caused him not to receive any of the various notices. Patel also argued that he was eligible to adjust status by virtue of his wife’s receipt of an 1-130 employee visa. Patel acknowledged that his motion was “most likely time barred and number barred,” (A. 12), but asked the BIA to exercise its discretion to reopen his proceeding sua sponte. See 8 C.F.R. § 1003.2(a).
The BIA denied the motion on December 19, 2008. (A.2.) The BIA explained that the motion was untimely whether considered as a motion to reconsider or a motion to reopen, which must be filed within thirty and ninety days, respectively, of the BIA’s previous disposition. See 8 C.F.R. § 1003.2(b)(2), (c)(2). The BIA further declined to exercise its authority to reopen sua sponte because Patel provided no explanation for “his long delay in seeking to pursue this matter[.]” (A.2.) Patel petitions for review.
II.
We have jurisdiction to review the BIA’s December 19, 2008 order pursuant to 8 U.S.C. § 1252. Our jurisdiction, however, does not extend to that aspect of the order in which the BIA declined to reopen sua sponte. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003).2 Our jurisdiction also does not extend to the BIA’s previous order of December 18, 2007, because Patel did not petition for review of that order. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Thus, our jurisdiction is limited to the BIA’s decision to deny Patel’s motion on the grounds that it was untimely. We review that ruling for abuse of discretion, and may disturb it only if it is “ ‘arbitrary, irrational, or contrary to law.’” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation omitted). We perceive no abuse of discretion here.
As the BIA properly explained, Patel’s motion was untimely by many months whether treated as a motion for reconsideration or a motion to reopen. See 8 C.F.R. § 1003.2(b)(2), (c)(2). Patel effectively conceded as much before the BIA and does not argue otherwise on review. Instead, he devotes much of his brief to challenging the IJ’s denial of his previous motion to rescind the in absentia deportation order and the BIA’s dismissal of his appeal from that ruling. As explained above, however, we do not have jurisdiction to review those rulings. He also argues the merits of his motion to reopen at *632some length, but those arguments do not address the grounds (i.e., untimeliness) on which the BIA denied it. Those arguments aside, Patel raises two others that warrant discussion. Neither has merit.
First, he asserts without further elaboration that “absentia orders that are based on the government’s actions should not be time barred. The Petitioner did not receive notice and there is no time bar under 8 C.F.R. Section 1003.2(b)(2) and (c)(2).” (Petr.’s Br. at 10.) Patel, however, did not raise this argument before the BIA, and instead conceded that the general time limitations applied to his motion. (A.12.) Thus, Patel failed to exhaust this argument, and we lack jurisdiction to review it. See 8 U.S.C. § 1252(d)(1); Sandie v. Att’y Gen., 562 F.3d 246, 250 n. 1 (3d Cir.2009).3
Second, Patel argues that the BIA abused its discretion by ruling in summary fashion without adequately addressing his arguments. We disagree. It is true that the BIA did not address Patel’s arguments on the merits. In light of the untimeliness of his motion, however, it had no reason to do so. Instead, the BIA quite reasonably focused on what Patel did not argue — i.e., any grounds to excuse the untimeliness of his motion. All of Patel’s arguments are addressed to his underlying claim that he lacked notice of the hearings that ultimately resulted in his in absentia deportation order. He presented that claim in his 2006 motion, both the IJ and BIA rejected it, and Patel did not petition for review. Thus, his arguments are merely a second attempt to explain why he did not appear for his deportation hearings. They provide no explanation for the untimeliness of the motion at issue here.
Accordingly, we cannot say that the BIA abused its discretion in denying Patel’s motion as untimely, and we will deny his petition for review.
. Patel was placed in deportation proceedings under fonner 8 U.S.C. § 1252b before April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act (‘‘IIRIRA”). See Luntungan v. Att'y Gen., 449 F.3d 551, 556 (3d Cir.2006). Accordingly, pre-IIRIRA procedures applied and we will use pre-IIRIRA terminology.
. We have recognized an exception to this principle when the BIA has announced and followed a policy that governs its otherwise unfettered discretion to reopen sua sponte. See Cruz v. Att’y Gen., 452 F.3d 240, 249 (3d Cir.2006); Calle-Vujiles, 320 F.3d at 475. Patel does not suggest that there is any such policy applicable in this case, and we are aware of none.
. Nevertheless, we note that the argument lacks merit. Patel cites no authority for this proposition, but he appears to have in mind the provisions governing motions filed with an IJ to rescind in absentia orders on the grounds of lack of notice, like the one he filed with the IJ in 2006. Such motions may be filed "at any time,” and are not subject to the time limitations ordinarily applicable to motions to reopen. 8 U.S.C. § 1252b(c)(3)(B) (repealed 1996); 8 C.F.R. §§ 1003.2(c)(3)(i), 1003.23(b)(4)(iii)(A)(2). These provisions, however, apply only to motions to reopen filed with an IJ, not to subsequent motions to reopen filed with the BIA. See Singh v. Gonzales, 436 F.3d 484, 489 (5th Cir.2006) (so holding with respect to analogous provisions applicable in post-IIRIRA removal proceedings); Calle-Vujiles, 320 F.3d at 473-74 (explaining that general time limitations apply to motions to reopen in absentia deportation orders filed with the BIA). Motions filed with the BIA must satisfy the timeliness requirements generally applicable thereto, in the absence of exceptions that are not present here. See 8 C.F.R. § 1003.2(c)(2), (c)(3). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471243/ | MEMORANDUM **
Juan Carlos Peraza-Carrillo appeals from the 52-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Peraza-Carrillo contends that the district court proeedurally erred by imposing a sentence that it considered “reasonable” rather than one that was “sufficient, but not greater than necessary” to accomplish the goals of sentencing under 18 U.S.C. § 3553(a). We review for plain error, see United States v. Dallman, 533 F.3d 755, 761 (9th Cir.2008), and affirm because Per-aza-Carrillo has not established any error affected his substantial rights, see id. at 761-62.
As Peraza-Carrillo acknowledges, his contention that the sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is foreclosed. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir.2009) (per curiam).
We remand the case to the district court with instructions that it delete from the judgment the 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/8471245/ | MEMORANDUM *
John Courtney Breault (“Breault”) appeals his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and his lifetime term of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the conviction and sentence.1
We review de novo the district court’s denial of Breault’s motion to suppress, United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.2007), and conclude that the warrant to search his home and computer for items showing the sexual exploitation of a child in violation of California Penal Code § 311.3 was supported by probable cause.2 In determining whether to issue a search warrant, the magistrate is tasked with making “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation omitted).
Here, the affidavit explained that just prior to his police interview, Breault had been surreptitiously videotaping children on an elementary school playground while “touching” himself. The affidavit also explained that Breault admitted that he (1) was sexually attracted to girls around the age of 11 and 12; (2) “hunted” on the internet using the search term “Lolitas,” which revealed images of “clothed and unclothed” young girls, and (3) had done so using the computer at his home. These facts established a fair probability that his computer would contain materials depicting the sexual exploitation of a child in violation of California Penal Code § 311.3. Breault’s admissions and conduct distinguish this case from those where probable cause was based solely on the description of images on a suspect’s computer. See, e.g., United States v. Battershell, 457 F.3d 1048, 1051, 1052-53 (9th Cir.2006) (holding that an affidavit’s description of an image must meet the statutory definition of child pornography to establish probable cause). From the totality of circumstances in this case, we conclude that probable cause existed to issue the warrant.
We also affirm the district court’s findings that Breault was not in custody during his initial encounter with the police or during his interview at the police station. We review for clear error the district court’s determination that both encounters were consensual and not custodial. United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986). The record supports the district court’s findings: the officers who confronted Breault on the beach never told him that he was under arrest, never used handcuffs, and did not display their firearms. Even assuming that the officers’ continued questioning of Breault amounted to an investigative detention, *361such questioning was reasonable under the circumstances and did not unlawfully prolong the purported detention. See Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). The officers had been called to the scene in response to complaints that a man was surreptitiously filming elementary school children, and they determined after initial questioning that Breault was not wearing underwear, had wet spots on his shirt and KY-jelly on his hand, had been “touching” himself while filming the children, and had recently taken methamphetamine. These facts were sufficient to create a reasonable suspicion that Breault was engaged in some kind of criminal activity and may have posed a danger to the children, thus justifying further investigation. See United States v. Turvin, 517 F.3d 1097, 1103-04 (9th Cir.2008). More importantly, subsequent to this initial encounter, Breault unequivocally told the detectives who interviewed him that he had come to the police station of his own volition and understood that he was not under arrest.
We review for reasonableness the district court’s imposition of the lifetime term of supervised release, United States v. Cope, 527 F.3d 944, 952 (9th Cir.2008), and we affirm. We find no significant procedural error in the imposition of the term and cannot say that it is substantively unreasonable. See United States v. Daniels, 541 F.3d 915, 921 (9th Cir.2008) (citations omitted). The district court’s references to the pre-sentence report and the parties’ position papers served as sufficient explanation for its imposition of the term of supervised release. Id. at 921-22. Moreover, the district court clearly expressed its view that the lifetime term was appropriate, citing “congressional intent” to that effect and the nature of Breault’s offense. See 18 U.S.C. § 3583(k) (providing for a term of supervised release ranging from five years to life for sex offenses).
The lifetime term was reasonable regardless of the district court’s indication that Breault could move to modify it at a later date. The United States Sentencing Guidelines indicate a preference for the lifetime term, and the record shows that Breault was not merely an idle viewer of child pornography. Not only was he apprehended after surreptitiously filming elementary-aged children for prurient reasons, but he admitted in the police interview that his inappropriate interest with children was “progressing.”
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts of this case, we repeat them here only as necessary.
. We reject the government's contention that Breault waived his present challenge to the warrant by failing to raise it in district court. Breault’s objections in district court that the warrant lacked probable cause were sufficient to preserve the probable cause arguments raised here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471247/ | MEMORANDUM **
Juan Jimenez appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Jimenez alleges that Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was effectively overruled or limited by the doctrine of avoidance of constitutional doubt, and 8 U.S.C. § 1326(b) is unconstitutional. Jimenez concedes that his contentions are foreclosed by our prior decisions, see United States v. Grisel, 488 F.3d 844, 847 (9th Cir.2007) (en banc) (holding that the date of a prior conviction is part of the “fact” of a prior conviction for Apprendi purposes); United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir.2007); United States v. Maciel-Vasquez, 458 F.3d 994, 995-96 (9th Cir.2006) (holding that 8 U.S.C. § 1326(b)(2) is constitutional); and that he raises them to preserve them for potential future review.
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/8471249/ | MEMORANDUM **
Hector Baca-Quiroz appeals the sentence imposed following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). Baca-Quiroz contends that the district court erred by failing to consider that the lack of a “fast-track” program in the District of Montana creates an unwarranted sentencing disparity contrary to the requirements of 18 U.S.C. § 3553(a)(6). Baca-Quiroz acknowledges that his contention is foreclosed by United States v. Gonzalez-Zotelo, 556 F.3d 736, 740-41 (9th Cir.2009), and that he raises it to preserve it for potential future review.
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/8471251/ | MEMORANDUM **
Jose Pineda-Gallegos appeals the sentence imposed following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). Pineda-Galle-gos contends that the district court erred by failing to consider that the lack of a “fast-track” program in the District of Montana creates an unwarranted sentencing disparity contrary to the requirements of 18 U.S.C. § 3553(a)(6). Pineda-Galle-gos acknowledges that his contention is foreclosed by United States v. Gonzalez-Zotelo, 556 F.3d 736, 740-41 (9th Cir.2009), and that he raises it to preserve it for potential future review.
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/8471253/ | MEMORANDUM *
The defendant Thomas P. Ranes appeals the district court’s denial of his motion to withdraw a guilty plea, and claims ineffective assistance of counsel.
The government argues that Ranes’ appeal of the motion to withdraw is barred by a waiver in the plea agreement. An appellate waiver that “does not specifically contemplate the possibility of an appeal based on the district court’s denial of a motion to withdraw [a plea]” may nonetheless preclude such an appeal if its language is sufficiently broad. United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir.2005).
Ranes’s plea agreement waived “the right to appeal the convictions resulting from the entry of guilty pleas.” If his guilty plea were withdrawn, the resulting conviction would fail too, rendering the waiver meaningless. The waiver’s language is broad enough to indicate that, by waiving the right to challenge the conviction, Ranes also waived the right to challenge the denial of his motion to withdraw his guilty plea.
On direct review we decide ineffective assistance of counsel claims only “(1) when the record on appeal is sufficiently developed to permit review and determination of the issue, or (2) when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel.” United States v. Daychild, 357 F.3d 1082, 1095 (9th Cir.2004). Neither condition applies here. The record is inadequately developed with respect to Ranes’s attorney’s competence, and there is no obvious flaw in his representation.
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 |
Subsets and Splits