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https://www.courtlistener.com/api/rest/v3/opinions/8471544/

MEMORANDUM ** Allen Wisdom appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action on Rooker-Feldman grounds, among others. He also appeals from an order denying his request to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a jurisdictional dismissal under the Rooker-Feldman doctrine de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We review denial of a request for IFP status for an abuse of discretion. Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir.1998) (per curiam). We affirm in part, reverse in part, and remand. At the time that Wisdom filed this action in federal district court against defendants, including his former lawyers and members of the Nevada judiciary, Wisdom’s state court action, arising out of the same facts and against some of the named defendants, was ongoing. Accordingly, the district court should have temporarily stayed Wisdom’s action pursuant to the abstention doctrine developed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (Rooker-Feldman bars “state-*215court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced,” from asking district courts to review and reject those judgments) (emphasis added); Gilbertson v. Albright, 381 F.3d 965, 978-84 (9th Cir.2004) (en banc) (holding that a section 1983 action for damages that would have the practical effect of enjoining an ongoing state judicial proceeding should be stayed under Younger where the state proceeding implicates important state interest, and the plaintiff is not barred from litigating the federal issues in the state proceeding). On remand, the district court should consider whether a judgment has entered in Wisdom’s state court action, and whether that judgment precludes any of Wisdom’s claims in this action. See Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517 (“In parallel litigation, a federal court may be bound to recognize the claim — and issue-preclusive effects of a state-court judgment, but federal jurisdiction over an action does not terminate automatically on the entry of judgment in the state court.”); Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808-09 (9th Cir.2007). If some claims remain, the district court should consider whether Younger applies to them. The district court did not abuse its discretion by denying Wisdom’s motion to proceed in forma pauperis after Wisdom paid the court filing fee. See United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (per curiam). We deny all pending motions. The parties shall 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/8471337/

MEMORANDUM ** Shuhua Wang, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review. The BIA did not abuse its discretion in denying Wang’s motion to reopen as untimely because he filed it over two years after the BIA issued its final order, see 8 C.F.R. § 1003.2(c)(2), and Wang failed to demonstrate changed circumstances in China to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”). 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/8471338/

MEMORANDUM ** Jose Vasquez-Garcia appeals from his guilty-plea conviction and 63-month sen*428tence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Vasquez-Garcia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal. Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provid*428ed by 9th Cir. R. 36-3.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471343/

MEMORANDUM ** Javier Aramburo Osuna appeals from his guilty-plea conviction and 151-month sentence for possession with intent to distribute a controlled substance, 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), Osuna’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal. Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471347/

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/8471349/

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/8471351/

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/8471541/

FERNANDEZ, and FISHER, Circuit Judges. ■ MEMORANDUM ** Ron Troutman appeals the district court order affirming the bankruptcy court’s judgment in an adversary proceeding brought by the Official Committee of Unsecured Creditors of Troutman Investment Co. (“Committee”) in the Chapter 111 proceedings of Troutman Investment Company, d/b/a Troutman’s Emporium (“Emporium”). We affirm. (1) The bankruptcy court did not err2 when it determined that Troutman owed the amount shown on the books of Emporium as his house account on the date of bankruptcy. That determination was properly made on an account stated theory,3 or on an open book account theory.4 Moreover, to the extent that Trout-man asserts that the amount shown in the account was not accurate at some earlier time, the bankruptcy court did not abuse its discretion5 when it determined that Troutman’s use of the amount shown in the account during his dissolution proceeding in 1996 judicially estopped6 him from claiming that the account was in error as of that time. Moreover, he does not point out any error that might have developed since then. (2) Nor did the bankruptcy court err when it determined that Troutman owed $150,000 on account of an amount that Emporium ultimately advanced on his behalf. That Emporium obtained that debt from Troutman’s brother, to whom Troutman originally owed the money, did not affect the validity of Emporium’s claim. See Misic v. Building Serv. Employees Health & Welfare Trust, 789 F.2d 1374, 1378 n. 4 (9th Cir.1986); Tumac Lumber Co., Inc. v. United States, 625 F.Supp. 1030, 1032 (D.Or.1985); Commonwealth Elec. Co. v. Fireman’s Fund Ins. Co., 93 Or.App. 435, 438, 762 P.2d 1041, 1042 (1988). Troutman’s assertion that Emporium was going to use the debt to purchase some of his stock in Emporium is futile because that arrangement was never pursued or consummated by either alleged party thereto.7 AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . 11 U.S.C. §§ 1101-1174. . See Cossu v. Jefferson Pilot Sec. Corp. (In re Cossu), 410 F.3d 591, 595 (9th Cir.2005). . See Hulse v. Ocwen Fed. Bank, FSB, 195 F.Supp.2d 1188, 1200-01 (D.Or.2002); Sunshine Dairy v. Jolly Joan, 234 Or. 84, 85-88, 380 P.2d 637, 638-39 (1963); Tri-County Ins., Inc. v. Marsh, 45 Or.App. 219, 223-24, 608 P.2d 190, 192 (1980). . See Farmer’s Feed & Supply Co. v. Indus. Leasing Corp., 286 Or. 311, 316, 594 P.2d 397, 400 (1979); Nw. Country Place, Inc. v. NCS Healthcare of Or., Inc., 201 Or.App. 448, 460, 119 P.3d 272, 279 (2005). . Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001). . See Hamilton, 270 F.3d at 782-83; Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01, 603 (9th Cir.1996). . For that reason alone, an amendment to Troutman’s defenses to assert that theory was properly rejected. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004); see also Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.1990). Moreover, the request to amend was not timely. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-609 (9th

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471543/

MEMORANDUM ** In these consolidated petitions for review, Irfan Pervai Bhatti, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) and the BIA’s order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), we review for abuse of discretion the denial of a motion to reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) and we review de novo constitutional questions, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petitions for review. Substantial evidence supports the IJ’s adverse credibility finding based on an inconsistency between Bhatti’s declaration, police certificate, and his testimony regarding whether the police had a record of his arrest, and based on his father’s internally inconsistent testimony regarding the extent and timing of threats to Bhatti from Muslim militants. See Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005); see also Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). Because the IJ had reason to question Bhatti’s credibility, the IJ reasonably took into account Bhatti’s failure to provide corroborating evidence in support of his claim of persecution, see Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000) and we are not compelled to conclude that corroborating evidence was unavailable, see 8 U.S.C. § 1252(b)(4)(D). Accordingly, we uphold the agency’s denial of asylum and withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). *213Because Bhatti’s CAT claim is based on the same statements the IJ 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 Pakistan, substantial evidence supports the IJ’s denial of CAT relief. See id. at 1156-57. The BIA did not abuse its discretion in denying Bhatti’s motion to reopen as untimely because it was not filed within 90 days of the BIA’s underlying order, see 8 C.F.R. § 1003.2(c)(2), and Bhatti failed to demonstrate changed circumstances in Pakistan to qualify for the regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”). Bhatti also contends the BIA violated his due process rights by not allowing him to present evidence of changed circumstances at an evidentiary hearing. Because the BIA considered the affidavits and country condition information attached to Bhatti’s motion to reopen, he cannot show a violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (holding petitioner must demonstrate error and substantial prejudice to prevail on a due process claim). PETITIONS 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/8471545/

MEMORANDUM ** Allen Wisdom appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action on Rooker-Feldman grounds, among others. He also appeals from an order denying his request to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a jurisdictional dismissal under the Rooker-Feldman doctrine de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We review denial of a request for IFP status for an abuse of discretion. Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir.1998) (per curiam). We affirm in part, reverse in part, and remand. At the time that Wisdom filed this action in federal district court against defendants, including his former lawyers and members of the Nevada judiciary, Wisdom’s state court action, arising out of the same facts and against some of the named defendants, was ongoing. Accordingly, the district court should have temporarily stayed Wisdom’s action pursuant to the abstention doctrine developed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (Rooker-Feldman bars “state-*215court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced,” from asking district courts to review and reject those judgments) (emphasis added); Gilbertson v. Albright, 381 F.3d 965, 978-84 (9th Cir.2004) (en banc) (holding that a section 1983 action for damages that would have the practical effect of enjoining an ongoing state judicial proceeding should be stayed under Younger where the state proceeding implicates important state interest, and the plaintiff is not barred from litigating the federal issues in the state proceeding). On remand, the district court should consider whether a judgment has entered in Wisdom’s state court action, and whether that judgment precludes any of Wisdom’s claims in this action. See Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517 (“In parallel litigation, a federal court may be bound to recognize the claim — and issue-preclusive effects of a state-court judgment, but federal jurisdiction over an action does not terminate automatically on the entry of judgment in the state court.”); Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808-09 (9th Cir.2007). If some claims remain, the district court should consider whether Younger applies to them. The district court did not abuse its discretion by denying Wisdom’s motion to proceed in forma pauperis after Wisdom paid the court filing fee. See United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (per curiam). We deny all pending motions. The parties shall 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/8471549/

MEMORANDUM ** Ronald Del Raine, a federal prisoner, appeals pro se from the district court’s judgment dismissing his action alleging that a number of officials in various federal prisons violated his civil rights and committed common-law torts. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) (lack of personal jurisdiction), Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003) (exhaustion of administrative remedies), Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam) (failure to state a claim), Kennedy v. S. Cal. Edison, Co., 268 F.3d 763, 767 (9th Cir.2001) (dismissal with leave to amend). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), and we affirm in part and dismiss in part. The district court properly dismissed the claims against defendants Fee-ney (incorrectly sued as Femme), Fanello and Romine, prison officials in Pennsylvania, because it lacked personal jurisdiction over these non-resident defendants. See Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1205 (9th Cir.2006) (requiring a non-resident to have “substantial, continuous, and systematic” contacts in a forum for a court to exercise general jurisdiction, and “purposefully direct his activities” or transactions within the forum for a court to exercise specific jurisdiction). The district court properly dismissed Del Raine’s claim challenging his placement in administrative segregation at the federal penitentiary in Lompoc because Del Raine failed to exhaust all levels of the administrative appeals process. See 42 U.S.C. § 1997e(a) (requiring inmates to exhaust all available administrative remedies). We affirm the district court’s dismissal of Del Raine’s vague allegations that his files had been ransacked on the basis that they are insufficient to state a constitutional claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982) (“Vague and concltisory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”). We dismiss as moot Del Raine’s appeal seeking injunctive relief in connection with the allegedly unconstitutionally small cells at the Lompoc penitentiary because Del Raine has since been transferred to another prison. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991) (per curiam) (providing that a prisoner’s claims for injunctive relief relating to prison conditions are rendered moot by his transfer to another facility). Del Raine has abandoned his challenge to the district court’s dismissal of his Federal Tort Claims Act claims. See Cook *222v. Schriro, 538 F.3d 1000, 1014 n. 5 (9th Cir.2008) (noting that issues not raised on appeal are deemed abandoned). AFFIRMED in part and 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/8471354/

MEMORANDUM ** Larry Dominguez, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of substantive law de novo and its factual determinations for clear error. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). The district court dismissed the action because Dominguez failed to appeal the rejection of his grievance as untimely at each available level of the administrative process. Dist. Ct. Op. at 7. After the district court reached that decision, significant new cases have been decided, including the Supreme Court’s decision in Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) and our opinion in Marella v. Terhune, 568 F.3d 1024, 1027-28 (9th Cir.2009). Accordingly, the district court did not have the opportunity to make factual findings relevant to the now-governing legal standards. We therefore vacate the district court’s decision and remand to allow that court the opportunity to reconsider Dominguez’s claim in light of intervening developments in the law. Dominguez’s motion for appointment of counsel is denied. The previous memorandum disposition is withdrawn. VACATED 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/8471356/

MEMORANDUM ** Baldev Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s 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 substan*440tial evidence, Popova v. INS, 273 F.3d 1251, 1257 (9th Cir.2001), and we deny the petition for review. Substantial evidence supports the BIA’s conclusion that, even if Singh suffered past persecution, conditions have changed in India such that Singh no longer has a well-founded fear of persecution. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1000-01 (9th Cir.2003) (individualized analysis of changed country conditions rebutted presumption of well-founded fear). Accordingly, petitioner’s asylum and withholding of removal claims fail. See id. Substantial evidence supports the agency’s denial of CAT relief, because Singh failed to establish that it is more likely than not that he would be tortured if he returned to India. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004). 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/8471548/

MEMORANDUM ** Ronald Del Raine, a federal prisoner, appeals pro se from the district court’s judgment dismissing his action alleging that a number of officials in various federal prisons violated his civil rights and committed common-law torts. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) (lack of personal jurisdiction), Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003) (exhaustion of administrative remedies), Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam) (failure to state a claim), Kennedy v. S. Cal. Edison, Co., 268 F.3d 763, 767 (9th Cir.2001) (dismissal with leave to amend). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), and we affirm in part and dismiss in part. The district court properly dismissed the claims against defendants Fee-ney (incorrectly sued as Femme), Fanello and Romine, prison officials in Pennsylvania, because it lacked personal jurisdiction over these non-resident defendants. See Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1205 (9th Cir.2006) (requiring a non-resident to have “substantial, continuous, and systematic” contacts in a forum for a court to exercise general jurisdiction, and “purposefully direct his activities” or transactions within the forum for a court to exercise specific jurisdiction). The district court properly dismissed Del Raine’s claim challenging his placement in administrative segregation at the federal penitentiary in Lompoc because Del Raine failed to exhaust all levels of the administrative appeals process. See 42 U.S.C. § 1997e(a) (requiring inmates to exhaust all available administrative remedies). We affirm the district court’s dismissal of Del Raine’s vague allegations that his files had been ransacked on the basis that they are insufficient to state a constitutional claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982) (“Vague and concltisory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”). We dismiss as moot Del Raine’s appeal seeking injunctive relief in connection with the allegedly unconstitutionally small cells at the Lompoc penitentiary because Del Raine has since been transferred to another prison. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991) (per curiam) (providing that a prisoner’s claims for injunctive relief relating to prison conditions are rendered moot by his transfer to another facility). Del Raine has abandoned his challenge to the district court’s dismissal of his Federal Tort Claims Act claims. See Cook *222v. Schriro, 538 F.3d 1000, 1014 n. 5 (9th Cir.2008) (noting that issues not raised on appeal are deemed abandoned). AFFIRMED in part and 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/8471550/

MEMORANDUM * Ignacio Martinez-Quezada pleaded guilty to a violation of 8 U.S.C. § 1326 for reentry into the United States after a pri- or deportation. He appeals his sentence of forty months imprisonment and three years supervised release. This Court has jurisdiction under 28 U.S.C. § 1291. We affirm. 1. The district court did not commit error by enhancing the maximum term *224of Martinez-Quezada’s sentence based on facts not adequately alleged in the indictment or proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir.2009), held that “[a]n indictment will support the § 1326(b) sentence enhancement if it alleges a removal date, thus enabling a sentencing court to compare that date to the dates of any qualifying felony convictions to determine whether the sentence-enhancing sequence is satisfied.” Id. at 431. The indictment to which Martinez-Quezada pleaded guilty did allege removal dates. There was therefore no Apprendi error. 2. Contrary to Martinez-Quezada’s position, the district court did not commit any procedural errors in sentencing. Martinez-Quezada did not assert any such procedural errors before the district court, so we review for plain error. See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en bane). A. The district court must “provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney” during sentencing. Fed. R.Crim.P. 32(i)(4)(A)(iii). In this case, the government’s counsel had recommended both in its sentencing brief and at the beginning of the sentencing hearing a sentence within the suggested Guidelines range. The prosecution did not rise to speak or otherwise indicate a need to reiterate the government’s views. Martinez-Quezada has not demonstrated “a reasonable probability that he would have received a different sentence” had the court given the prosecutor an express invitation to be heard again, Ameline, 409 F.3d at 1078, and so has not shown that the court’s error, if any, affected his substantial rights. See United States v. Waknine, 543 F.3d 546, 553 (9th Cir.2008). Government counsel did not seek to comment on the district court’s suggestion that it might depart from the range, although there is no reason to think he could not have done so. Moreover, the district court was quite aware of the government’s recommendation: It rejected as unsatisfactory “reasons that were argued to me for staying within the guideline or going below,” yet the government was the only party that recommended a within-Guideline sentence. B. The district court did not improperly determine the applicable Guidelines sentence, nor was it improperly influenced by what it perceived to be a lenient sentence in Martinez-Quezada’s 2005 Seattle prosecution. A district court must begin by determining the appropriate Guidelines range applicable to a defendant’s sentence. United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). While the district judge stated that it was possible a 16-level enhancement could have applied in this proceeding, he expressly approved and applied the Presentence Report’s recommendation that the defendant’s. 1994 felony firearm conviction was not an aggravated felony, so no 16-level enhancement applied. The district judge therefore properly determined the applicable Guidelines range. A district court also commits procedural error if it “choose[s] a sentence based on clearly erroneous facts.” Id. at 993 (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Martinez-Quezada has not shown that the district court relied on any erroneous facts when fashioning his present sentence. The court referred to the Seattle conviction when it initially warned defense counsel that it might impose a sentence above the Guidelines range and *225again while explaining its reasons for imposing a sentence above the Guidelines range. Read in context, however, the statements indicate concerns that the Seattle conviction was part of a lengthy criminal history and that Martinez-Quezada’s prior punishment in Seattle had not deterred him from the later violation, not a determination that Martinez-Quezada had been treated with undue lenience in Seattle. C. The district court adequately considered the need to avoid unwarranted sentencing disparities in its review of the § 3553 sentencing factors.1 “The district court need not tick off each of the § 3553(a) factors to show that it has considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (en banc). The judge heard argument from MartinezQuezada’s counsel that above-Guideline sentences are rare in “alien cases.” The judge also referred to the § 3553(a) factors and stated that he had considered the arguments made to him “about motivation to return and any other of the specific factors that would have been departures under prior law.” See United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008) (noting that the district court was not “required to explicitly mention the types of sentences received by otherwise similarly situated defendants who pleaded guilty,” and holding that a sentence resulting from a jury trial in a § 1326 case was reasonable). 3. Finally, Martinez-Quezada challenges the substantive reasonableness of his sentence, which we review for an abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). We reject this challenge. The district court explicitly recognized its obligation to impose a sentence that was sufficient but not greater than necessary to fulfill the purposes of § 3553(a): The court stated that it had considered and rejected arguments for a sentence below or within the Sentencing Guidelines and offered several reasons for exceeding the Guidelines range, including that Martinez-Quezada was likely to return to the United States despite his many deportations, had a lengthy criminal history, and showed a lack of respect for the law and the courts as demonstrated by repeated failures to appear and outstanding warrants. Considering the “totality of the circumstances,” Canty, 520 F.3d at 993 (citing Gall, 128 S.Ct. at 597), the district court did not abuse its discretion in imposing Martinez-Quezada’s sentence. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Martinez-Quezada's related argument that the district judge should have considered an upward departure from the criminal history category before imposing an above-Guideline variance also fails. Post-Booker, this Court “treat[s] the scheme of downward and upward 'departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.” United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.2006). A district court's "decision to sentence outside of the applicable guidelines range is subject to a unitary review for reasonableness, no matter how the district court styles its sentencing decision.” Id. The district court was therefore free to impose an upward variance without first considering a departure, so long as it arrived at a reasonable result.

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https://www.courtlistener.com/api/rest/v3/opinions/8471552/

MEMORANDUM ** Arizona state prisoner Kristofer Seneca appeals pro se from the district court’s dismissal of his 42 U.S.C. § 1983 action alleging that the Arizona Department of Corrections (“ADOC”) violated his right to free exercise of religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. The district court dismissed as moot Seneca’s claims regarding the ADOC’s requirement that prisoners submit a verification letter in order to change their religious designation and the ADOC’s limitations on inmates’ access to religious items, and dismissed Seneca’s claim challenging the ADOC’s policy requiring that all religious items be purchased from the inmate store for failure to exhaust. We have jurisdiction to review the district court’s final orders pursuant to 28 U.S.C. § 1291. We reverse the district court’s dismissal of two of Seneca’s claims as moot, and affirm the district court on all other grounds. 1. We review de novo the dismissal of a claim as moot. Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir.2004). Voluntary cessation of challenged conduct renders a claim moot if “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations omitted). A defendant’s voluntary change in policy only renders a claim moot if it is “ ‘a permanent change’ in the way it [does] business and [is] not a ‘temporary policy that the agency will refute once this litigation has concluded.’” Smith v. Univ. of *228Wash., Law Sch., 233 F.3d 1188, 1194 (9th Cir.2000) (quoting White v. Lee, 227 F.3d 1214, 1243 (9th Cir.2000)). Further, in establishing mootness, the “defendant bears the burden of showing that its voluntary compliance moots a case by convincing the court that ‘it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Lozano v. AT T Wireless Services, Inc., 504 F.3d 718, 733 (9th Cir.2007) (emphasis in original). Here, the ADOC merely filed an affidavit stating that the “policy changed” after Seneca filed suit such that inmates were no longer required to present a verification letter, and that Seneca had since been allowed to change his religious designation. Because this evidence fails to establish the permanency of the change in policy, the ADOC did not meet its burden of demonstrating mootness. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Smith, 233 F.3d at 1194. We do not foreclose the possibility that the ADOC may be able to meet its burden with additional evidence of its change in policy. We therefore reverse the dismissal of Seneca’s claim challenging the verification letter requirement and remand for further proceedings.1 We also reverse the dismissal of Seneca’s claim that the policy limiting inmates to seven religious items lacked compelling justification and was not the least restrictive means of furthering ADOC interests, and so violated RLUIPA. The ADOC’s elimination of a numerical limit on items did not resolve Seneca’s claim because the new policy simultaneously eliminated the allowance for oversize items, preventing Seneca from accessing certain large items counted among the twenty items to which he sought access in his complaint. Seneca maintained throughout the litigation that he sought access to these twenty items, and that the ADOC violated his rights by preventing him from accessing the items without compelling reason or use of the least restrictive means. Because the change in policy did not “completely and irrevocably eradicate! ] the effects of the alleged violation,” it did not render his claim moot. Davis, 440 U.S. at 631, 99 S.Ct. 1379. When considering this claim on remand, the district court should apply the RLUI-PA’s broad definition of “religious exercise” in light of our recent opinions addressing that issue. See Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir.2008) (“RLUIPA ‘bars inquiry into whether a particular belief or practice is central to a prisoner’s religion’ ” (quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005))); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008) (focusing on the sincerity rather than centrality of a religious belief); see also 42 U.S.C. § 2000ec-5(7)(A) (defining “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief’). 2. “On a dismissal for failure to exhaust administrative remedies, the district court’s underlying factual determinations are reviewed for clear error, and its application of substantive law is reviewed de novo.” Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.2008). The Prison Litigation Reform Act of 1995 (“PLRA”) requires that inmates exhaust all available administrative remedies before initiating litigation challenging prison conditions. 42 U.S.C. *229§ 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.2006). An inmate’s failure to exhaust administrative remedies before bringing a federal action challenging prison conditions is an affirmative defense. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.2005); Wyatt v. Terhune, 315 F.3d 1108, 1117-18, 1120 (9th Cir.2003). As an initial matter, we conclude that Defendants preserved the exhaustion defense by asserting it in their initial answer, see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir.2000), and that the district court properly treated the motion for summary judgment on exhaustion grounds as an unenumerated Rule 12(b) motion. Wyatt, 315 F.3d at 1119; Ritza v. Int'l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir.1988). We also conclude that the district court properly dismissed Seneca’s RLUIPA claims regarding the ADOC’s policy requiring that religious items be purchased from the inmate store and prohibiting receipt of donated religious items. Although the district court did not review the 2003 grievance with which Seneca claimed to have administratively exhausted this claim, the court properly concluded that even assuming the grievance stated what Seneca asserted, such language was far too general, and could not have put prison officials on notice of Seneca’s objection to the donation and purchase policies.2 See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009) (stating that where a grievance lacks factual specificity, it must at least “alert[] the prison to the nature of the wrong for which redress is sought” to satisfy the exhaustion requirement). 3. We review a district court’s decision to deny a motion for contempt for abuse of discretion, Hallett v. Morgan, 296 F.3d 732, 749 (9th Cir.2002), and we conclude that no such abuse occurred here. Seneca moved the district court to hold the ADOC in contempt for requiring him to produce a religious verification letter in order to change his religious designation and obtain a vegetarian diet, arguing that in doing so the ADOC violated the court’s 1986 order in Van Orden v. Lewis, No. CIV-86-211-TUC-ACM. However, the Van Orden order was narrow in scope, only enjoining the ADOC from requiring a religious verification letter before allowing then-inmate David Van Orden an exemption from a hair length policy. Because the ADOC’s actions in this case did not violate that narrow injunction, and the district eourt had not yet analyzed the merits of Seneca’s claim that the verification letter requirement here was unlawful, the district court properly denied the motion. 4. Finally, Seneca briefly argues that the district court erred by failing to consider his claim that Defendants improperly restrict inmates to religious items “normally used” in traditional practice of their religion. Because Seneca did not allege in his complaint or elsewhere before the district court that he has been denied access to any particular item pursuant to this policy, the district court did not err in failing to consider it. AFFIRMED in part; REVERSED and REMANDED in part. The parties shall bear their own costs of appeal. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . We deny Seneca's motion for leave to present further evidence regarding this claim; the evidence he seeks to introduce was not before the district court and does not bear on mootness of Seneca's religious verification claim. . Accordingly, we deny Seneca's motion to supplement the record on appeal with the 2003 grievance.

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https://www.courtlistener.com/api/rest/v3/opinions/8471554/

*231MEMORANDUM * Joselito Asican, a native and citizen of the Philippines and a lawful permanent resident, petitions for review of the BIA’s dismissal of his appeal of the Immigration Judge’s discretionary denial of cancellation of removal. We dismiss in part and deny in part the petition for review. Asican argues in his petition for review, for the first time in this case, that he did not commit two crimes of moral turpitude and the IJ violated due process by not informing him about discretionary domestic victim waivers of removal and developing the administrative record regarding potential domestic abuse. Asican did not raise these claims in his BIA appeal brief. Therefore, he has not exhausted his administrative remedies and we lack jurisdiction to consider the claims. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir.2009); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc). Nor does the BIA’s citation to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994),1 excuse Asican’s failure to exhaust. Additionally, after Abebe, an independent or de novo review of the record will not exhaust claims not asserted in the BIA appeal brief. Abebe, 554 F.3d at 1208. (“To the extent Ladha v. INS, 215 F.3d 889, 903 (9th Cir.2000), is to the contrary, it is overruled.”). Asican argues that the IJ applied the incorrect legal standard to cancellation of removal by not considering a crucial positive factor, the hardship to Asican’s three citizen children, when he weighed the positive and negative factors. The record belies this contention. See In re C-V-T, 22 I. & N. Dec. 7, 11 (BIA 1998); In re Edwards, 20 I. & N. Dec. 191, 195-97 (BIA 1990). Because the IJ applied the correct legal standard, we lack jurisdiction to review the IJ’s discretionary determination that Asican is not entitled to cancellation of removal. Mendez-Castro v. Mukasey, 552 F.3d 975, 978-80 (9th Cir.2009). Finally, Asican asserts that the IJ violated due process by allowing an incomplete or inaccurate translation of the cancellation of removal testimony. To establish his due process claim, Asican must show that an incompetent translation prejudiced his hearing. Perez-Lastor v. INS, 208 F.3d 773, 778-80 (9th Cir.2000). A review of the complete transcript establishes that Asican understood and answered the vast majority of the questions. Unlike Perez-Lastor, Asican never stated that he could not understand or consistently gave answers completely unrelated to the questions. At most, the record established that the interpreter made two mistakes. At the beginning of the hearing, the IJ admonished the interpreter for adding “your honor” to the testimony. Later, the IJ admonished Asican to wait for the translation to answer, admonished the interpreter for adding the year to clarify which conviction was at issue, and had counsel repeat the question. Asican has not shown that the translator was incompetent or that a better translation may have resulted in a discretionary grant of cancellation of removal. PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . The BIA cited Burbano only for the IJ’s holdings that Asican “did not merit cancellation of removal and was ineligible for all other forms of relief.”

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https://www.courtlistener.com/api/rest/v3/opinions/8477803/

*118ON MOTION ORDER Susan Thompson having failed to comply with the court’s July 17, 2009 order requiring that her brief be filed no later than August 7, 2009, and prohibiting further extensions of time, IT IS ORDERED THAT: (1) The petition for review is dismissed for failure to comply with the court’s order. Each side shall bear its own costs. (2) Thompson’s untimely motion for an additional extension of time is moot.

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471551/

MEMORANDUM * Ignacio Martinez-Quezada pleaded guilty to a violation of 8 U.S.C. § 1326 for reentry into the United States after a pri- or deportation. He appeals his sentence of forty months imprisonment and three years supervised release. This Court has jurisdiction under 28 U.S.C. § 1291. We affirm. 1. The district court did not commit error by enhancing the maximum term *224of Martinez-Quezada’s sentence based on facts not adequately alleged in the indictment or proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir.2009), held that “[a]n indictment will support the § 1326(b) sentence enhancement if it alleges a removal date, thus enabling a sentencing court to compare that date to the dates of any qualifying felony convictions to determine whether the sentence-enhancing sequence is satisfied.” Id. at 431. The indictment to which Martinez-Quezada pleaded guilty did allege removal dates. There was therefore no Apprendi error. 2. Contrary to Martinez-Quezada’s position, the district court did not commit any procedural errors in sentencing. Martinez-Quezada did not assert any such procedural errors before the district court, so we review for plain error. See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en bane). A. The district court must “provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney” during sentencing. Fed. R.Crim.P. 32(i)(4)(A)(iii). In this case, the government’s counsel had recommended both in its sentencing brief and at the beginning of the sentencing hearing a sentence within the suggested Guidelines range. The prosecution did not rise to speak or otherwise indicate a need to reiterate the government’s views. Martinez-Quezada has not demonstrated “a reasonable probability that he would have received a different sentence” had the court given the prosecutor an express invitation to be heard again, Ameline, 409 F.3d at 1078, and so has not shown that the court’s error, if any, affected his substantial rights. See United States v. Waknine, 543 F.3d 546, 553 (9th Cir.2008). Government counsel did not seek to comment on the district court’s suggestion that it might depart from the range, although there is no reason to think he could not have done so. Moreover, the district court was quite aware of the government’s recommendation: It rejected as unsatisfactory “reasons that were argued to me for staying within the guideline or going below,” yet the government was the only party that recommended a within-Guideline sentence. B. The district court did not improperly determine the applicable Guidelines sentence, nor was it improperly influenced by what it perceived to be a lenient sentence in Martinez-Quezada’s 2005 Seattle prosecution. A district court must begin by determining the appropriate Guidelines range applicable to a defendant’s sentence. United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). While the district judge stated that it was possible a 16-level enhancement could have applied in this proceeding, he expressly approved and applied the Presentence Report’s recommendation that the defendant’s. 1994 felony firearm conviction was not an aggravated felony, so no 16-level enhancement applied. The district judge therefore properly determined the applicable Guidelines range. A district court also commits procedural error if it “choose[s] a sentence based on clearly erroneous facts.” Id. at 993 (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Martinez-Quezada has not shown that the district court relied on any erroneous facts when fashioning his present sentence. The court referred to the Seattle conviction when it initially warned defense counsel that it might impose a sentence above the Guidelines range and *225again while explaining its reasons for imposing a sentence above the Guidelines range. Read in context, however, the statements indicate concerns that the Seattle conviction was part of a lengthy criminal history and that Martinez-Quezada’s prior punishment in Seattle had not deterred him from the later violation, not a determination that Martinez-Quezada had been treated with undue lenience in Seattle. C. The district court adequately considered the need to avoid unwarranted sentencing disparities in its review of the § 3553 sentencing factors.1 “The district court need not tick off each of the § 3553(a) factors to show that it has considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (en banc). The judge heard argument from MartinezQuezada’s counsel that above-Guideline sentences are rare in “alien cases.” The judge also referred to the § 3553(a) factors and stated that he had considered the arguments made to him “about motivation to return and any other of the specific factors that would have been departures under prior law.” See United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008) (noting that the district court was not “required to explicitly mention the types of sentences received by otherwise similarly situated defendants who pleaded guilty,” and holding that a sentence resulting from a jury trial in a § 1326 case was reasonable). 3. Finally, Martinez-Quezada challenges the substantive reasonableness of his sentence, which we review for an abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). We reject this challenge. The district court explicitly recognized its obligation to impose a sentence that was sufficient but not greater than necessary to fulfill the purposes of § 3553(a): The court stated that it had considered and rejected arguments for a sentence below or within the Sentencing Guidelines and offered several reasons for exceeding the Guidelines range, including that Martinez-Quezada was likely to return to the United States despite his many deportations, had a lengthy criminal history, and showed a lack of respect for the law and the courts as demonstrated by repeated failures to appear and outstanding warrants. Considering the “totality of the circumstances,” Canty, 520 F.3d at 993 (citing Gall, 128 S.Ct. at 597), the district court did not abuse its discretion in imposing Martinez-Quezada’s sentence. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Martinez-Quezada's related argument that the district judge should have considered an upward departure from the criminal history category before imposing an above-Guideline variance also fails. Post-Booker, this Court “treat[s] the scheme of downward and upward 'departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.” United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.2006). A district court's "decision to sentence outside of the applicable guidelines range is subject to a unitary review for reasonableness, no matter how the district court styles its sentencing decision.” Id. The district court was therefore free to impose an upward variance without first considering a departure, so long as it arrived at a reasonable result.

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471553/

MEMORANDUM ** Arizona state prisoner Kristofer Seneca appeals pro se from the district court’s dismissal of his 42 U.S.C. § 1983 action alleging that the Arizona Department of Corrections (“ADOC”) violated his right to free exercise of religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. The district court dismissed as moot Seneca’s claims regarding the ADOC’s requirement that prisoners submit a verification letter in order to change their religious designation and the ADOC’s limitations on inmates’ access to religious items, and dismissed Seneca’s claim challenging the ADOC’s policy requiring that all religious items be purchased from the inmate store for failure to exhaust. We have jurisdiction to review the district court’s final orders pursuant to 28 U.S.C. § 1291. We reverse the district court’s dismissal of two of Seneca’s claims as moot, and affirm the district court on all other grounds. 1. We review de novo the dismissal of a claim as moot. Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir.2004). Voluntary cessation of challenged conduct renders a claim moot if “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations omitted). A defendant’s voluntary change in policy only renders a claim moot if it is “ ‘a permanent change’ in the way it [does] business and [is] not a ‘temporary policy that the agency will refute once this litigation has concluded.’” Smith v. Univ. of *228Wash., Law Sch., 233 F.3d 1188, 1194 (9th Cir.2000) (quoting White v. Lee, 227 F.3d 1214, 1243 (9th Cir.2000)). Further, in establishing mootness, the “defendant bears the burden of showing that its voluntary compliance moots a case by convincing the court that ‘it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Lozano v. AT T Wireless Services, Inc., 504 F.3d 718, 733 (9th Cir.2007) (emphasis in original). Here, the ADOC merely filed an affidavit stating that the “policy changed” after Seneca filed suit such that inmates were no longer required to present a verification letter, and that Seneca had since been allowed to change his religious designation. Because this evidence fails to establish the permanency of the change in policy, the ADOC did not meet its burden of demonstrating mootness. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Smith, 233 F.3d at 1194. We do not foreclose the possibility that the ADOC may be able to meet its burden with additional evidence of its change in policy. We therefore reverse the dismissal of Seneca’s claim challenging the verification letter requirement and remand for further proceedings.1 We also reverse the dismissal of Seneca’s claim that the policy limiting inmates to seven religious items lacked compelling justification and was not the least restrictive means of furthering ADOC interests, and so violated RLUIPA. The ADOC’s elimination of a numerical limit on items did not resolve Seneca’s claim because the new policy simultaneously eliminated the allowance for oversize items, preventing Seneca from accessing certain large items counted among the twenty items to which he sought access in his complaint. Seneca maintained throughout the litigation that he sought access to these twenty items, and that the ADOC violated his rights by preventing him from accessing the items without compelling reason or use of the least restrictive means. Because the change in policy did not “completely and irrevocably eradicate! ] the effects of the alleged violation,” it did not render his claim moot. Davis, 440 U.S. at 631, 99 S.Ct. 1379. When considering this claim on remand, the district court should apply the RLUI-PA’s broad definition of “religious exercise” in light of our recent opinions addressing that issue. See Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir.2008) (“RLUIPA ‘bars inquiry into whether a particular belief or practice is central to a prisoner’s religion’ ” (quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005))); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008) (focusing on the sincerity rather than centrality of a religious belief); see also 42 U.S.C. § 2000ec-5(7)(A) (defining “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief’). 2. “On a dismissal for failure to exhaust administrative remedies, the district court’s underlying factual determinations are reviewed for clear error, and its application of substantive law is reviewed de novo.” Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.2008). The Prison Litigation Reform Act of 1995 (“PLRA”) requires that inmates exhaust all available administrative remedies before initiating litigation challenging prison conditions. 42 U.S.C. *229§ 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.2006). An inmate’s failure to exhaust administrative remedies before bringing a federal action challenging prison conditions is an affirmative defense. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.2005); Wyatt v. Terhune, 315 F.3d 1108, 1117-18, 1120 (9th Cir.2003). As an initial matter, we conclude that Defendants preserved the exhaustion defense by asserting it in their initial answer, see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir.2000), and that the district court properly treated the motion for summary judgment on exhaustion grounds as an unenumerated Rule 12(b) motion. Wyatt, 315 F.3d at 1119; Ritza v. Int'l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir.1988). We also conclude that the district court properly dismissed Seneca’s RLUIPA claims regarding the ADOC’s policy requiring that religious items be purchased from the inmate store and prohibiting receipt of donated religious items. Although the district court did not review the 2003 grievance with which Seneca claimed to have administratively exhausted this claim, the court properly concluded that even assuming the grievance stated what Seneca asserted, such language was far too general, and could not have put prison officials on notice of Seneca’s objection to the donation and purchase policies.2 See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009) (stating that where a grievance lacks factual specificity, it must at least “alert[] the prison to the nature of the wrong for which redress is sought” to satisfy the exhaustion requirement). 3. We review a district court’s decision to deny a motion for contempt for abuse of discretion, Hallett v. Morgan, 296 F.3d 732, 749 (9th Cir.2002), and we conclude that no such abuse occurred here. Seneca moved the district court to hold the ADOC in contempt for requiring him to produce a religious verification letter in order to change his religious designation and obtain a vegetarian diet, arguing that in doing so the ADOC violated the court’s 1986 order in Van Orden v. Lewis, No. CIV-86-211-TUC-ACM. However, the Van Orden order was narrow in scope, only enjoining the ADOC from requiring a religious verification letter before allowing then-inmate David Van Orden an exemption from a hair length policy. Because the ADOC’s actions in this case did not violate that narrow injunction, and the district eourt had not yet analyzed the merits of Seneca’s claim that the verification letter requirement here was unlawful, the district court properly denied the motion. 4. Finally, Seneca briefly argues that the district court erred by failing to consider his claim that Defendants improperly restrict inmates to religious items “normally used” in traditional practice of their religion. Because Seneca did not allege in his complaint or elsewhere before the district court that he has been denied access to any particular item pursuant to this policy, the district court did not err in failing to consider it. AFFIRMED in part; REVERSED and REMANDED in part. The parties shall bear their own costs of appeal. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . We deny Seneca's motion for leave to present further evidence regarding this claim; the evidence he seeks to introduce was not before the district court and does not bear on mootness of Seneca's religious verification claim. . Accordingly, we deny Seneca's motion to supplement the record on appeal with the 2003 grievance.

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MEMORANDUM * Delta Mechanical, Inc. (“Delta”) appeals the district court’s decision pursuant to Fed.R.Civ.P. 12(b)(6) that it is not a third-party beneficiary to a settlement agree*233ment and thus is not entitled to bring a lawsuit for alleged breach, etc., of that agreement by the settling defendants. Delta also appeals the district court’s decision that it cannot sue the Garden City Group, Inc. (“Garden City”) as a contractual delegatee of the settling defendants. We reverse in part, affirm in part, and remand for further proceedings. I The district court was correct in denying the effects of collateral estoppel to Delta. The Missouri court’s conclusion that Delta was a third-party beneficiary to the settlement agreement was not a critical and necessary part of its judgment that Delta was not entitled to intervene in the action which produced the agreement. II The district court erred in concluding pursuant to Rule 12(b)(6) that Delta was not a third-party beneficiary to the agreement. The evidentiary record on this issue demonstrates at this early stage of the case that whether Delta was or was not a third-party beneficiary is a genuine issue of material fact that might survive summary judgment. A party is a third-party beneficiary to a contract if the terms of the contract “clearly express intent to benefit that party or an identifiable class of which the party is a member.” Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo.2006). “In cases where the contract lacks an express declaration of that intent, there is a strong presumption that the third party is not a beneficiary and that the parties contracted to benefit only themselves.” Id. “Furthermore, a mere incidental benefit to the third party is insufficient to bind that party.” Id. It is not necessary that the contracting parties’ primary object is to benefit the third parties, “but only that the third parties be primary beneficiaries.” Andes v. Alborto, 853 S.W.2d 936, 942 (Mo.1993). “Third party beneficiary status depends not so much on a desire or purpose to confer a benefit on the third person, but rather on an intent that the promisor assume a direct obligation to him.” Chesus v. Watts, 967 S.W.2d 97, 106 (Mo.Ct.App.1998); see also Teter v. Morris, 650 S.W.2d 277, 282 (Mo.Ct.App.1983). The district court held that Delta was not a third-party beneficiary because the settlement agreement “does not express any intent that the defendants assume a direct obligation to Delta or other ‘authorized service personnel.’ ” We conclude, however, that the evidence currently in the record viewed in the light most favorable to Delta could support a determination in its favor on this issue. The factual content of the complaint and reasonable inferences therefrom are plausibly suggestive of a claim entitling Delta to relief. See Moss v. U.S. Secret Serv., 572 F.3d 962, 964-66 (9th Cir.2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Section 8 of the agreement sets forth the “Settling Defendants’ Obligations” which outlines the benefits the settling defendants must provide to the class. Class members are entitled to a certificate for a water dip tube replacement upon submitting a timely Proof of Claim form. The class member then has six months to redeem the certificate by using the services of an authorized service personnel who will provide the repair benefits. The class member is required to provide the Proof Documentation and parts and pieces of the dip tube to the approved plumber before he or she is entitled to the Section 8.2 replacement. *234The agreement establishes an obligation on the part of the settling defendants to pay for the replacement of the water dip tubes: 8. Settling Defendants’ Obligations. Settling Defendants shall provide the following benefits to the Class. ... The names of authorized service personnel who will be available to provide the service will be provided with the certifícate. Settling Defendants shall ensure that adequate and trained service personnel are available to provide service to Class Members in a timely manner. 8.2.4. If a Class Member is experiencing property damage resulting from a Subject Dip Tube, such Class Member shall, in addition to a dip tube replacement, be entitled to repair of property damage caused by, or related to the Subject Dip Tube. 8.2.6. Upon submission of a timely, completed Proof of Claim, such claimant will be provided the identities of approved plumbers who will provide repair benefits. 16. Assignment of Class Members’ Claims Against Perfection. Upon entry of the Final Order and Judgment, each Class Member ... shall be deemed to and does hereby assign, unto the Settling Defendant that is responsible for providing to the Class Member any benefits described in Section 8, any and all claims ... which the Class Member has or may have against [the dip tube manufacturer]....” 25.3. Under the Settlement, each Tank Manufacturer is obligated to provide benefits under Section 8 of the Agreement only for claims made against its water heaters. Id. at pp. 14-15, 22, 25. There can be no doubt that Delta qualifies as “authorized service personnel.” Thus, a reasonable fact finder might determine that the settling defendants did intend to assume a direct obligation to Delta for the replacement costs. Accordingly, it was error to dismiss this case pursuant to Rule 12(b)(6). Normally the next step would be to proceed to summary judgment. Vignolo v. Miller, 120 F.3d 1075, 1078 (9th Cir.1997). Ill Delta has not raised a claim that it was a third-party beneficiary of an agreement between Garden City and the settling defendants. Therefore, we affirm the district court’s dismissal of Garden City as a defendant. A mere agent of a disclosed principal is not a party to a contract and is not liable for the principal’s nonperformance. AFFIRMED IN PART, REVERSED IN PART, and REMANDED. The parties shall bear their own costs. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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ON MOTION ORDER Hardie’s Fruit & Vegetable Company-South, LP (“Hardies”) moves to dismiss this appeal for mootness and vacate the September 15, 2008 judgment of the Court of Federal Claims and the July 15, 2008, decision of the Small Business Administration’s Office of Hearings and Appeals (“SBA”). The United States opposes the request to vacate the aforementioned judgment and decision. Upon consideration thereof, IT IS ORDERED THAT: (1) The motion to dismiss is granted. (2) The motion to vacate is denied. (3)The mandate will issue in due course.

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MEMORANDUM ** Defendant-Appellant Art Garcia appeals his convictions following a jury trial for the importation of cocaine and possession of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841, 952, and 960. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. Garcia first argues that the district court abused its discretion when it excluded as irrelevant Garcia’s testimony about what he thought about de Leon and de Leon’s boss who had asked him to go and pick up the car that was later determined at the border to contain cocaine.1 Garcia’s general opinion of these individuals was not relevant to whether Garcia knew the car contained the cocaine he was charged with possessing or why Garcia lied to the law enforcement officials. Fed.R.Evid. 401. However, any testimony that Garcia feared de Leon and his boss and lied to the law enforcement officers out of fear that de Leon and his boss might harm Garcia’s family would have been relevant. Nevertheless, the jury heard testimony from Garcia about his retaliation fears, and so to the extent the excluded questions might have elicited relevant testimony, it was plainly cumulative of other admitted testimony and properly excluded under Fed. R.Evid. 403. The district court did not abuse its discretion when it excluded the testimony. See United States v. Boulware, 384 F.3d 794, 805, 808 n. 6 (9th Cir.2004). *443The same analysis applies to the sustaining of an objection to a defense question about whether Garcia was set up, or when he knew that, because the substance of his other admitted testimony, if credited by the jury, would have supported his theory that he was set up. Garcia also argues that the district court’s refusal to give his “theory of the defense” instruction was reversible error. Garcia’s theory of the defense was that he did not know there was cocaine in the car. “A defendant is entitled to have the judge instruct the jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence.” United States v. Crandall, 525 F.3d 907, 911 (9th Cir.2008) (brackets omitted). However, “it is not reversible error to reject a defendant’s proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory.” United States v. Romm, 455 F.3d 990, 1002 (9th Cir.2006). We agree with the district court that Garcia’s defense was fully encompassed by the other jury instructions. See id. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . The parties are familiar with the facts of this case and we do not repeat them here.

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MEMORANDUM * Myron Motley appeals his convictions, following a conditional guilty plea, for possession with intent to distribute cocaine base and cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(iii), and (b)(1)(C). Motley contends that the district court erred by denying his motion to suppress evidence seized during a pretextual traffic stop of his vehicle. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand. Motley argues that the district court committed legal error by concluding that Trooper Manion had independent probable cause1 to stop Motley’s vehicle, the stop was also justified by Detective Ames’ reasonable suspicion imputed to Manion through the collective knowledge doctrine, and the stop was not unlawfully prolonged while Manion awaited the arrival of a narcotics-detection dog. We review these conclusions of law de novo and underlying factual findings for clear error. United States v. Turvin, 517 F.3d 1097, 1099 (9th Cir.2008). We need not resolve the question whether Manion had independent probable cause or reasonable suspicion for the stop because even if he did, the length of Motley’s detention exceeded the period of time reasonably necessary to cany out the purposes of the traffic stop. See Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (“A seizure that is justified solely by the interest in issuing a [traffic] ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”). The district court found that Motley was detained for roughly fifty minutes, at least fifteen to twenty of which were related to the traffic stop, and the remainder of which were spent awaiting the arrival of the narcotics-deteetion dog. In the absence of reasonable suspicion of illegal drug activity, the thirty-minute delay between the time Manion completed his independent investigation and the time the drug dog arrived runs afoul of the Fourth Amendment. See United States v. Luckett, 484 F.2d 89, 91 (9th Cir.1973); see also United States v. Dortch, 199 F.3d 193, 198-200 (5th Cir.1999) (holding that defendant was unlawfully detained when the drug dog arrived “moments” after officers had effectuated the purposes of their initial traffic stop and officers had not obtained facts creating reasonable suspicion that defendant was trafficking drugs). Because Manion’s traffic stop revealed no independent evidence of illicit narcotics activity, the outcome of this case turns on whether the district court properly concluded that Ames had obtained information amounting to reasonable suspicion that could be imputed to Manion through the collective knowledge doctrine. As a threshold matter, Motley contends that the *447collective knowledge doctrine does not apply because Ames informed Manion that he lacked probable cause and that Manion should develop independent probable cause for the stop. We reject this argument for the simple reason that the district court imputed reasonable suspicion, not probable cause. Reasonable suspicion is a less exacting standard than probable cause, United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), so even if Ames expressly disclaimed having probable cause, that disclaimer does not necessarily encompass the lower standard of reasonable suspicion. To the extent that Ames had reasonable suspicion that Motley was involved in illegal drug activity, his request that Manion stop Motley is a sufficient communication to impute Ames’ knowledge to Manion under the collective knowledge doctrine. See United States v. Ramirez, 473 F.3d 1026, 1036 & n. 7 (9th Cir.2007). Motley next argues that the district court erroneously concluded that Ames had reasonable suspicion because it did not apply the legal framework for assessing the reliability of confidential informants. We agree. Ames’ investigation of Motley was prompted by information he received from an unnamed relative of a confidential informant. When evaluating whether such information is sufficient to support a finding of reasonable suspicion, a court “must employ a ‘totality-of-the-circumstances approach’ that takes into consideration the informant’s ‘veracity or ‘reliability’ and his ‘basis of knowledge.’ ” United States v. Rowland, 464 F.3d 899, 907 (9th Cir.2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). By omitting any discussion of the reliability of the unnamed relative, the district court artificially enhanced the weight of the information that the tipster provided. Reliability is measured by factors such as whether the informant (1) is known or anonymous, (2) has previously proven himself reliable, (3) reveals the basis of his knowledge, and (4) “provides detailed predictive information about future events that is corroborated by police observation.” Rowland, 464 F.3d at 907-08. Considering, all of these factors under the totality of the circumstances, we conclude that the unnamed relative’s tip deserves little weight. Ames testified that he spoke with the tipster and knew the tipster was a relative of a confidential informant, but there is no indication in the record that Ames actually met, could identify, or knew how or where to find the tipster. Moreover, the record does not demonstrate that Ames previously used the tipster as an informant or that the tipster explained how he or she2 obtained knowledge of Motley’s involvement in drug trafficking. With respect to the fourth factor, “[p]re-dictive information that reveals a detailed knowledge of an individual’s intimate affairs is more reliable than predictive information that could be observed by the general public, and such self-verifying detail is considerably more valuable if it relates to suspicious activities than if it relates to innocent activities.” Id. at 908 (citations omitted). Even though the tipster’s information accurately led Ames to Motley, the bulk of the tipster’s information was too general, benign, and disconnected from Motley’s future behavior to reflect positively on the tipster’s credibility. See Florida v. J.L., 529 U.S. 266, 271-272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (distinguishing tips that accurately identify a certain person from those that substantiate concealed, illegal activity). Motley was a fixture at Harrah’s for several years prior to his arrest, so the color of his car and his *448general residential patterns at Harrah’s are not the type of details that corroborate insider knowledge of criminal activity. While this type of generic information can help establish a tipster’s reliability if spun in a predictive web, see Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (holding that a tipster’s accurate description of a suspect’s car was insufficient to establish the tipster’s reliability, but the tipster’s knowledge that the suspect would be entering the car in short order and driving to a specific destination sufficed), the tipster did not make such an offering here. In fact, the only predictive information provided by the tipster that could have established his or her reliability was that Motley would take up to nineteen ounces of cocaine at a time, transform it into rock cocaine, and sell the crack to middlemen. However, the tipster did not identify any of Motley’s suppliers or middlemen, indicate where Motley rocked the cocaine or kept his drug packaging materials, explain when or how Motley used his car to transport drugs, or provide any details concerning Motley’s whereabouts during his absences from Harrah’s. At the time Manion stopped Motley, Ames had not uncovered evidence fleshing out any of these details. Ames had no evidence of how, when, where, or from whom Motley might obtain cocaine or that Motley possessed or had access to any of the material necessary to transform the cocaine into crack. The effect of this lack of corroboration of the tipster’s predictive information is that the tipster’s general information that Motley was a cocaine dealer should be given minimal weight. Where, as here, “ ‘a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.’” Rowland, 464 F.3d at 907 (quoting White, 496 U.S. at 330, 110 S.Ct. 2412). Apart from the information provided by the tipster, Ames testified to having received information from Harrah’s, including information about an incident in which Motley called security to report the loss of the key to his room safe, but in which the safe was broken into before a maintenance worker arrived to open it; about an associate of Motley’s being arrested in Harrah’s for selling crack cocaine; about calls to and from Motley’s hotel room, the times and frequency of which the hotel staff found suspicious; about an increase, over several years, in the amount of money Motley gambled at Harrah’s; and about Motley’s failure to list a job or employer on the paperwork he filled out for Harrah’s. Ames did not testify as to having any information about the year in which the safe incident took place, or how much time elapsed between Motley’s call to report the missing key and the maintenance person arriving to open the safe; about the nature or extent of Motley’s association with the person arrested for dealing crack cocaine or the year in which the arrest took place; or about whether Motley’s increased transactions at Harrah’s were unattributable to his luck or skill at gambling. Although it is a close call, we conclude that the factors upon which the district court relied to support its finding of reasonable suspicion are insufficient to show that Ames had something more than an “inchoate and un-particularized suspicion” that Motley was dealing drugs. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The factors would have been sufficient to create reasonable suspicion if the tipster were reliable, but they amount to nothing more than a hunch of criminal activity when the tipster’s information is given its due degree of weight in the totality of the circumstances. *449Because Ames himself lacked reasonable suspicion, there is no reasonable suspicion to impute to Manion through the collective knowledge doctrine. Motley’s thirty-minute detention was therefore unlawful. Accordingly, we VACATE Motley’s convictions and REVERSE and REMAND for further proceedings. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Although the district court found that Man-ion had probable cause to stop Motley for a traffic violation, only a finding of reasonable suspicion was required to hold the stop constitutional. See, e.g., United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir.2000). Motley argues that Manion lacked both probable cause and reasonable suspicion. . The record does not indicate whether the tipster was male or female.

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Chief Judge KOZINSKI, dissenting: The Supreme Court has described reasonable suspicion as “some minimal level of objective justification” that is “obviously less demanding” than probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). My colleagues purport to apply this standard but, in fact, honor it in the breach. In Sokolow, the Court found reasonable suspicion to detain a man so that his luggage could be sniffed by a drug dog, just as in our case. Sokolow waited for the dog for three hours, six times as long as Motley. 490 U.S. at 5, 109 S.Ct. 1581. Sokolow was traveling from Honolulu to Miami under a fake name for two days in July. Id. at 3, 5,109 S.Ct. 1581. He bought his ticket with cash, checked no luggage and appeared nervous. Id. The Court recognized that “[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel.” Id. at 9, 109 S.Ct. 1581. Still, the Court explained, the facts “taken together ... amount to reasonable suspicion” that Soko-low was carrying narcotics. Id. at 9, 109 S.Ct. 1581. The majority works hard to come up with possible innocent explanations for Motley’s odd behavior, like maybe he was able to maintain his extravagant lifestyle through luck or skill at gambling. Maj. at 448. And Sokolow could have been traveling to Miami under a false name in the middle of the summer because he needed embarrassing surgery. 490 U.S. at 8, 109 S.Ct. 1581. Particularly risible is the majority’s intimation that Motley might have broken into his room safe because he got tired of waiting for maintenance to show up. No doubt hotel guests tear open their room safes every day because of lazy locksmiths; it must be a leading source of lost revenue for the hotel industry. The hotel where Motley was living and gambling gave him its highest grade for gamblers, Seven Stars. It had every reason to avoid losing a high roller who was a steady source of profit, and certainly would have been very careful to avoid exaggerating or making up incriminating facts. That alone gives the security director’s report to the police sufficient weight to provide a “minimal level of objective justification.” 490 U.S. at 7, 109 S.Ct. 1581 (quoting Delgado, 466 U.S. at 217,104 S.Ct. 1758). The majority also works hard to undermine the reliability of the informant, maj. at 447-48, and I agree that he could have been more reliable. But what my colleagues overlook is that, had the informant been reliable, the tip alone would have provided probable cause, not merely reasonable suspicion. No matter how much we discount the informant’s story, even the majority admits it must be given some weight. Maj. at 447 (“little weight”); id. at 7, 109 S.Ct. 1581 (“minimal weight”). And that weight cannot be further discounted as having a possible innocent explanation. When we take that “little weight” or “minimal weight” and add it to the information from the hotel security director, the police here certainly had as much or more than, say, in Terry v. Ohio, where all they knew was that the suspect had walked up and down the block a few times and looked into a store window. 392 *450U.S. 1, 6, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We got reversed in Sokolow for doing precisely what we’re doing today. It could happen again and this time there may not even be the comfort of a dissent.

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MEMORANDUM ** Guanzan Jin, a native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s (“IJ”) order denying Jin’s application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition. 1. The IJ’s adverse credibility determination, which the BIA expressly adopted, is not supported by substantial evidence. See Li v. Holder, 559 F.3d 1096, 1102 (9th Cir.2009) (substantial evidence standard); Mendez-Mendez v. Mukasey, 525 F.3d 828, 832 (9th Cir.2008) (judicial review limited to BIA decision except to the extent BIA expressly adopts IJ opinion). The IJ viewed a letter from Jin’s pastor with “great suspicion” because the telephone number listed for the church was the same as the telephone number that Jin provided in his asylum application. Instead of asking Jin to explain why the telephone numbers matched, the IJ engaged in an indirect and largely irrelevant line of questioning focused on whether church business was conducted out of Jin’s home. Because the IJ did not afford Jin an opportunity clarify the perceived ambiguity in the evidence, the IJ could not rely on it as a basis for her adverse credibility determination.1 See Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir.2004). The letter also incorrectly stated that Jin had been a deacon at the church since July 2003; however, Jin explained that he had been a member of the church since that time, that he had become a deacon later, and that his pastor had mistakenly conflated the two events. Even if Jin had not offered a reasonable explanation for this error in the letter, it was an invalid basis for an adverse credibility determination because it was only indirectly related to Jin’s asylum.2 See Li, 559 F.3d at 1106 *452(issues that do “not go to the heart of his claim [have] little bearing on the veracity of the persecution he describes”). Nor do the IJ’s other findings constitute substantial evidence supporting an adverse credibility determination. Her finding that it “does not make sense for a Christian” not to be baptized was based on her “personal and overly narrow conception of baptism.” See Cosa v. Mukasey, 543 F.3d 1066, 1070 (9th Cir.2008). The IJ imper-missibly drew adverse inferences from Jin’s failure to obtain corroborating testimony from abroad, see Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000), and she demonstrated a lack of knowledge about how the Chinese calculate age when she incorrectly concluded that Jin’s testimony as to his age conflicted with the birth date listed on his hospital release certificate. The IJ’s conclusion that Jin had not demonstrated knowledge of his faith is contrary to Jin’s correct answers to each question about Christianity and his detailed descriptions of the faith. The IJ also found inconsistencies in Jin’s accounts of the police raid on his church service and of his hospital stay, where, in fact, the record reveals no meaningful discrepancies in his story. Finally, to the extent that the IJ based her adverse credibility determination on Jin’s demeanor, she failed to provide a specific and cogent reference to non-credible aspects of his demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003). 2. The BIA erred in concluding that, even if Jin were found credible, he failed to establish that he was a victim of past persecution or has a well-founded fear of persecution. See Mendez-Mendez, 525 F.3d at 832 (legal questions reviewed de novo). Jin’s account of fines, imprisonment, and beatings at the hands of Chinese authorities is sufficient to establish past persecution. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir.2004) (cumulative impact of physical assaults and economic harassment compelled finding of persecution). We therefore remand to the BIA for consideration of the remaining issues pursuant to INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). PETITION GRANTED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . During oral argument, Jin's counsel suggested that the telephone number on the letter actually belonged to a friend of Jin’s who spoke English. It might be reasonable for Jin, who does not speak English, to use an English — speaking friend’s telephone number on all of his documents. While we do not rely upon counsel’s explanation because it is beyond the record, we mention it because it illustrates that, had the IJ provided Jin the opportunity to explain the phone number, Jin may have been able to provide a reasonable explanation. . Section 101(a)(3) of the REAL ID Act eliminated the requirement that a basis for an adverse credibility determination must go to the heart of an immigrant’s claim of persecution. 8 U.S.C. § 1158(b)(l)(B)(iii). Because *452Jin filed his application for relief before May 11, 2005, that provision is inapplicable here. See In Re S-B-, 24 I. & N. Dec. 42 (BIA 2006).

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MEMORANDUM * Petitioner Vouty Thol (“Thol”) appeals from the denial of his 28 U.S.C. § 2254 habeas petition, arguing that a jury instruction error had a substantial and injurious effect on the jury’s verdict in his case. We review the district court’s ruling de novo, Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir.2009), and we affirm.1 Thol was tried and convicted of first degree attempted murder and, in the alternative, first degree assault of Bunny Vath (“Vath”). The Washington state court entered judgment and sentenced Thol on the first degree attempted murder charge only. Thol appealed, contending that his conviction and sentence should be reversed because of a faulty jury instruction. The Washington Court of Appeals acknowledged that the accomplice liability instruction given at Thol’s trial was similar to one found to be defective by the Washington *454Supreme Court. State v. Trujillo, 112 Wash.App. 390, 49 P.3d 935, 941 (2002) (citing State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000)). Nevertheless, the Court of Appeals held that “because the record demonstrates conclusively that such error could not have materially affected the jury’s deliberations in this case ... [the error] was harmless beyond a reasonable doubt.” Id. Contrary to Thol’s assertion in the original briefing, we do not review the Court of Appeals’ decision under a structural error standard. Rather, following the Supreme Court’s directive in Hedgpeth v. Pulido, - U.S. -, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008), we consider the Court of Appeals’ decision under the “substantial and injurious effect” standard established in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Court of Appeals determined that the record supported Thol’s conviction as a principal, rendering harmless any jury instruction error regarding accomplice liability. The Court of Appeals analyzed Thol’s claim using the proper harmless error standard, as defined by Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In determining that it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,” id. at 18,119 S.Ct. 1827, the Court of Appeals conducted a thorough examination of the record to determine “whether the record contains evidence that could rationally lead to a contrary finding with respect” to the error. Id. at 19, 119 S.Ct. 1827. The Court of Appeals detailed Thol’s involvement in the attack on Vath, including his recruitment, his attendance at a planning gathering that occurred just before the attack, witness testimony that Thol was present when one of the men detailed the group’s plan to “[k]nock on the door and shoot,” and his presence in one of the vehicles used in the attack. The Court of Appeals’ conclusion was not contrary to nor based on an unreasonable application of Supreme Court law. See 28 U.S.C. § 2254(d). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Thol's Unopposed Motion to Enlarge the Record is granted except as to the two declarations of the allegedly recanting witnesses. Thol's Motion seeking Judicial Notice of Portions of the State Court Record is granted except to the extent such documents were not part of the record before the Washington State Court of Appeals. Waddington's Motion to Strike Supplemental Excerpts of Record is denied as moot because Thol agreed to exclude the declarations referenced above.

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MEMORANDUM *** Lorena Landero-Guzman (“Landero”) petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) pretermission of her application for cancellation of removal. The IJ and BIA found that solicitation of possession of narcotic drugs for sale, for which Landero had been convicted under Arizona law (ARiz. Rev. Stat. §§ 13-1002, -3408), was a crime involving moral turpitude (“CIMT”), and that Landero was therefore ineligible for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition for review. Landero contends that the statute under which she was convicted includes conduct beyond ordinary drug trafficking; therefore, that her crime was not a CIMT under the categorical approach. We disagree. Arizona law distinguishes between the possession of a narcotic drug for sale, Ariz. Rev.Stat. §§ 13-3408(A)(2), and the less serious crime of possession or use of a narcotic drug, Ariz.Rev.Stat. §§ 13-3408(A)(1). Landero’s argument that she could have been convicted of solicitation of the more serious offense merely for attempting to purchase drugs for personal use, or even for making statements in support of drug trafficking, is a highly dubious interpretation of the statutory scheme. It was Landero’s burden, therefore, to show that the State of Arizona had actually prosecuted an offender, either in her own or another case, for the less serious conduct that Landero contends is included in the statute. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (“To show that realistic *456possibility [of a nongeneric application of the statute], an offender ... may show that the statute was so applied in his own case ... or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”). Landero failed to adduce any such evidence; we therefore interpret the offense for which she was convicted as solicitation of a drug trafficking offense. We have held that drug trafficking crimes are CIMTs. See, e.g., Barragan-Lopez v. Mukasey, 508 F.3d 899, 903-04 (9th Cir.2007); Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir.1987). Because solicitation of an offense requires the intent that the substantive offense be committed, solicitation of a drug trafficking offense is also a CIMT. Barraqan-Lonez, 508 F.3d at 903-04. The petition for review is DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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CERTIFICATION OF QUESTIONS OF STATE LAW EBEL, Circuit Judge. Pursuant to 10th Cir. R. 27.1 and Okla. Stat tit. 20, § 1602, the United States Court of Appeals for the Tenth Circuit requests that the Oklahoma Supreme Court exercise its discretion to consider several certified questions of Oklahoma law which “may be determinative of an issue” in these appeals currently pending before this court and on which “there is no controlling” Oklahoma law. Okla. Stat. tit. 20, § 1602. I. FACTS In 1972, the Logan County, Oklahoma, Board of Commissioners, acting pursuant to state law, created Plaintiff-Appellee Ru*464ral Water, Sewer and Solid Waste Management District No. 1 (“Logan-1”) as “a non-profit association” that would provide water to rural Logan County, except for the area of the county located within the city limits of Guthrie, Oklahoma, as those limits existed at that time. Defendants-Appellants City of Guthrie, Oklahoma, and its Guthrie Public Works Authority (collectively “Guthrie”), already provided water service to the City itself. Beginning in 1976, Logan-1 obtained several loans from the United States Department of Agriculture (“USDA”). These loans were part of a program established in 1961, when “Congress amended the Consolidated Farm and Rural Development Act, 7 U.S.C. §§ 1921-2009n, to allow nonprofit water associations to borrow federal funds for ‘the conservation, development, use, and control of water ... primarily serving ... rural residents.’ ” Moongate Water Co. v. Dona Ana Mutual Domestic Water Consumers Ass’n, 420 F.3d 1082, 1084 (10th Cir.2005) (“Moon-gate Water”) (quoting 7 U.S.C. § 1926(a)(1)).1 Logan-1 obtained a total of five of these loans, two in 1976, and one each in 1978,1982 and 2003.2 Sometime in 2003, a land developer approached Guthrie, seeking water service for his planned development, the Pleasant Hills Apartments. No one disputes that this development is located within the geographic territory that the Logan County Commissioners assigned to Logan-1 in 1972. Nonetheless, it was Guthrie that extended its water system in order to provide Pleasant Hills with water service. As a result, Logan-1 sued Guthrie, in July 2005, claiming that Guthrie had unlawfully encroached on Logan-l’s service area, which was protected from competition by 7 U.S.C. § 1926(b) and the terms of its loan agreements which had been authorized by the Oklahoma legislature.3 Section 1926(b) protects any rural water district that remains indebted on loans obtained from the USDA from competition from other water districts “within the borrowing entity’s service area.” Doña Ana Mut. Domestic Water Consumers Ass’n v. City of Las Cruces, 516 F.3d 900, 902-03 (10th Cir.2008) (“Doña Ana”). Section 1926(b) specifically provides: The service provided or made available through any [indebted rural water] association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit *465as a condition to continuing to serve the area served by the association at the time of the occurrence of such event. 7 U.S.C. § 1926(b). Section 1926(b)’s protection serves two goals. See Pittsburg County, 358 F.3d at 715. First, it provides “greater security for the federal loans made under the program.” Id. (quotation omitted). By protecting the territory served by such an association facility against competitive facilities, which might otherwise be developed with the expansion of the boundaries of municipal and other public bodies into an area served by the rural system, § 1926 protects the financial interests of the United States, which is a secured creditor of the water association, from reduction of the water association’s revenue base. Id. (quotation, citation omitted). “The second interest” served by § 1926(b)’s protection from competition “is the promotion of rural water development by expanding the number of potential users of such systems, thereby decreasing the per-user cost.” Id. (quotation omitted). “[T]o receive the protection against competition provided by § 1926(b) a water association must (1) have a continuing indebtedness [under loans obtained from] the federal government, and (2) have provided or made available service to the disputed area.” Moongate Water, 420 F.3d at 1084 (quotation, alteration omitted). Thus, this court has held that a water district’s service area protected from competition under 7 U.S.C. § 1926(b) is not necessarily the entire geographic area granted to the district under state law, but is instead the area 1) for which the water district has a right, under state law, to provide service and 2) has actually done so, or could do so in reasonable time. See Sequoyah County, 191 F.3d at 1201-03. In addition to these principles defining the protection § 1926(b) affords rural water districts from competition, state law cannot change the service area to which the protection applies, after that federal protection has attached. See Pittsburg County, 358 F.3d at 715. For instance, “where the federal § 1926 protections have attached, § 1926 preempts local or state law that can be used to justify a municipality’s encroachment upon disputed area in which an indebted association is legally providing service under state law.” Pitts-burg County, 358 F.3d at 715 (quotation, alteration omitted). II. SUMMARY OF LEGAL DISPUTE In the appeals pending before this court, Logan-1 contends that it has authority, under Okla. Stat. tit. 82, § 1324.10(A)(4), to enter into loan agreements with the USDA that include § 1926(b)’s protection from competition,4 and that, having done so, it is entitled here to claim that *466§ 1926(b) protects its right to serve Pleasant Hills from competition from Guthrie. Guthrie does not appear to dispute that Okla. Stat. tit. 82, § 1324.10(A)(4) authorizes Logan-1 generally to obtain federal loans, but Guthrie argues that, because Logan-l’s USDA loans include the § 1926(b) protection from competition, those loans are contrary to the Oklahoma Constitution, which provides that “[t]he Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.” Okla. Const, art., 5, § 51. Although Guthrie phrases this argument in several different ways, Guthrie’s contention is that the Oklahoma legislature’s enactment of Okla. Stat. tit. 82, § 1324.10 violates Okla. Const, art. 5, § 51 to the extent that § 1324.10(A)(4) authorizes Logan-1 to enter into loans with the USDA that must, as a matter of federal law, contain the protection against competition afforded rural water districts under 7 U.S.C. § 1926(b). The parties point to three cases, two from Oklahoma and one from this court, that they contend are particularly relevant to this issue. Guthrie relies upon Comanche County Rural Water District No. 1 v. City of Lawton, 501 P.2d 490 (Okla.1972), and Rural Water & Sewer District No. 4 v. Coppage, 47 P.3d 872 (Okla.2002), to support its argument that Logan-1 lacks state-law authority to enter into loan agreements with the USDA that include the § 1926(b) protection from competition. Comanche County and Coppage both appear to indicate that if the Oklahoma legislature granted a water district an “exclusive franchise,” that would violate Okla. Const, art. 5, § 51. See Coppage, 47 P.3d at 875-76; Comanche County, 501 P.2d at 492-93. The issue presented in this case is whether the Oklahoma Constitution prohibits Logan-1 from claiming an exclusive right to serve a prospective, but not current, customer located within its assigned service area provided that Logan-1 has the legal right and present ability to provide water service to such a prospective customer. On this issue, Logan-1 argues the Oklahoma Constitution does not prevent it from asserting such an exclusive right under § 1926(b), and Guthrie argues that the Oklahoma Constitution does prohibit Logan-1 from asserting such an exclusive right under § 1926(b). Logan-1, in arguing that its claimed § 1926(b) protection is not contrary to Okla. Const, art. 5, § 51, relies upon Glenpool Utility Services Authority v. Creek County Rural Water District No. 2, 861 F.2d 1211 (10th Cir.1988), which this court decided after Comanche County, but before Coppage. Glenpool held that the § 1926(b) protection Logan-1 claims did not violate Oklahoma Constitution, art. 5, § 51, because 1) any exclusive right that stems from § 1926(b) comes from Congress, and not the Oklahoma legislature; 2) the § 1926(b) protection should be viewed as a contract condition and a security provision rather than an exclusive franchise granted by the state; and 3) any such right that Congress granted is only temporary, rather than permanent, because it is contingent on the continuing existence of a federal debt owed by the protected water district, which the district or the State of Oklahoma could pay off whenever it wishes. See Glenpool, 861 F.2d at 1216. In addition to this argument, Logan-1 offers an alternative argument in support of its claimed § 1926(b) protection from competition. Logan-1 asserts that, even if its loans incorporating the § 1926(b) protection are contrary to Okla. Const, art. 5, § 51, Oklahoma recognizes exceptions to that state constitutional prohibition that would apply in this case. In Glenpool, for instance, this court noted that “Oklahoma *467case law contains clear reference to exemptions from article 5, § 51 on the basis of police power needed for the public interest, and on the basis of status as a state ‘agency.’ ” 861 F.2d at 1216 n. 2 (citations omitted); see also Kimery v. Pub. Serv. Co. of Okla., 622 P.2d 1066, 1071 (Okla.1980) (holding, in applying Okla. Const, art. 5, § 51, that “[w]here a statute touches upon the public health and welfare, the statute cannot be deemed unconstitutional class legislation, even though a specific class of persons or businesses is singled out, where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good”); Estate of Cabelka ex rel. Cabelka v. Comanche County Hosp., 87 P.3d 1101, 1103 (Okla.Civ.App.2003) (noting suggestion that extending governmental immunity to private or non-public entities would implicate Okla. Const, art. 5, § 51’s prohibition against the legislature granting exclusive rights, privileges or immunities). Logan-1 invokes these exemptions, and specifically points to the Oklahoma Supreme Court’s decision in Public Service Company of Oklahoma v. Caddo Elec. Coop., 479 P.2d 572 (Okla.1970) (“Caddo ”), as support for its assertion of a police power or public safety exemption to Okla. Const, art. 5, § 51. Caddo addressed a state law that provided a rural electric utility protection from competition much like the protection afforded by § 1926(b). See Caddo, 479 P.2d at 575. The Oklahoma Supreme Court held that state-law protection did not violate Okla. Const, art. 5, § 51’s prohibition against exclusive franchises because it was a “proper exercise of police power” aimed at promoting rural electric service while avoiding the wasteful duplication of such services. See Caddo, 479 P.2d at 577-81. III. QUESTIONS Although we recognize our obligation to interpret and apply federal law independently, the parties’ arguments presented in these appeals also require us to apply Oklahoma law. And we are obligated to apply Oklahoma law as decided by the Oklahoma Supreme Court. It is the interpretation of Oklahoma law about which we request guidance here. Therefore, based upon the legal dispute described above, we certify to the Oklahoma Supreme Court the following questions: 1. Whether Okla. Const, art. 5, § 51 precludes Logan-1 from either entering into loan agreements with the USDA that include 7 U.S.C. § 1926(b)’s protection from competition, or enforcing its claimed § 1926(b) protection against other Oklahoma water districts? 2. If either is so, whether there is a police power or public safety exception to the Oklahoma Constitution, art. 5, § 51’s prohibition against exclusive rights, privileges or immunities that would, nevertheless, validate Logan-l’s loan agreements with the USDA that include the § 1926(b) protection from competition in this case involving provision of a rural public water service? IV. PROCEDURAL ORDERS IMPLEMENTING CERTIFICATION We appreciate the Oklahoma Supreme Court’s consideration of these certified questions of Oklahoma law. And we recognize that, if the Oklahoma Supreme Court accepts these certified questions, it may, “[p]ursuant to Okla. Stat. tit., 20, §§ 1602.1 and 1604(A)(3), ... reformulate th[ese] question[s] of law.” Pino v. United States, 507 F.3d 1233, 1238 (10th Cir.2007). We direct the clerk of this court to transmit a copy of this certification order to the parties and to forward a copy of this order, together with the parties’ briefs (which also display the names and addresses of counsel of record, see Okla. Stat. tit. 20, § 1604(A)(4)), to the Okla*468homa Supreme Court pursuant to Okla. Stat. tit. 20, § 1603.1. Pino, 507 F.3d at 1238. We also direct the clerk of this court to transmit a copy of this certification order to the Clerk of the United States District Court for the Western District of Oklahoma, attention case No. 05-cv-0078-R, See Ball v. Wilshire Ins. Co., 498 F.3d 1084, 1086 (10th Cir.2007). “The treatment of any costs associated with the certification proceedings should be as prescribed by ... Okla. Stat. tit. 20, § 1606.” Randall v. Travelers Cas. & Sur. Co., 450 F.3d 1115, 1117 (10th Cir.2006). Pursuant to Tenth Circuit R. 27.1(A), we stay these appeals pending the Oklahoma Supreme Court’s consideration of this certification request and, if the request is accepted, the Oklahoma Supreme Court’s resolution of these certified questions. See Ball, 498 F.3d at 1086; Randall, 450 F.3d at 1117. . Originally the Farmers Home Administration (“FmHA”) administered these loans. See Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 701 (10th Cir.2004) ("Pittsburg County”). Since 1994, however, the Department of Agriculture has operated this loan program, see id. at 701 n. 1, through its Rural Utilities Service. See Rural Water Dist. No. 1. Ellsworth County v. City of Wilson, 243 F.3d 1263, 1269 n. 3 (10th Cir.2001) (citing 7 C.F.R. § 1780.3). . In 1987, the USDA sold the first four of these loans to Community Program Loan Trust 1987A, a special purpose Massachusetts business trust. That fact, however, does not affect the questions we certify here to the Oklahoma Supreme Court. See Moongate Water Co. v. Butterfield Park Mut. Domestic Water Ass’n, 291 F.3d 1262, 1265-67 (10th Cir.2002) (holding transfer of USDA loans to private lenders did not extinguish a rural water district’s indebted on those loans for purposes of § 1926(b)); see also Sequoyah County Rural Water Dist. No. 7 v. Town of Muldrow, 191 F.3d 1192, 1198 (10th Cir.1999). .Oklahoma Stat. tit. 82, § 1324.10(A)(4). . Oklahoma Stat. tit. 82, § 1324.10(A)(4) provides: Every district incorporated hereunder ... shall have power to: (4) Borrow money and otherwise contract indebtedness for the purposes set forth in this act, and, without limitation of the generality of the foregoing, to borrow money and accept grants from the United States of America, or from any corporation or agency created or designated by the United States of America, and, in connection with such loan or grant, to enter into such agreements as the United States of America or such corporation or agency may require: and to issue its notes or obligations therefor, and to secure the payment thereof by mortgage, pledge or deed or trust on all or any property, assets, franchises, rights, privileges, licenses, rights-of-way, easements, revenues, or income of the said district. Okla. Stat. tit. 82, § 1324.10(A) (emphasis added) (footnote omitted).

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Judgment PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

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IKUTA, J., concurring in part and dissenting in part: Although I concur in Sections I and III, I disagree with the analysis in Section II. In considering a motion to dismiss under Rule 12(b)(6), we “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft, v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). “We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. Under this test, Delta does not allege facts sufficient to survive a motion to dismiss. *235Setting aside Delta’s conclusory legal allegation that it is an intended third-party beneficiary of the Class Action Settlement Agreement, the essence of Delta’s factual allegations is that 1) defendants failed to issue certificates to eligible class members, 2) such failure was a breach of the Settlement Agreement, and 3) as a result, Delta was not compensated. See Settlement Agreement, Section 8.2.3. Because Delta does not allege that the Settling Defendants agreed in the Settlement Agreement to incur an obligation to Delta, the complaint’s factual allegations do not allow the court to draw the reasonable inference that Delta was an intended third-party beneficiary of the Settlement Agreement or that the defendants are liable to Delta for a breach of that agreement. The language in Section 8 of the Settlement Agreement quoted by the majority does not “plausibly give rise to an entitlement to relief.” Iqbal, 129 S.Ct. at 1950. Accordingly, the district court did not err in dismissing Delta’s complaint.

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MEMORANDUM ** Robert and Sandra Montgomery appeal from the district court’s partial summary judgment for Kingman Airport Authority, et al. (Kingman). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We agree with the reasoning of the district judge and affirm. We will affirm the district court if the Montgomerys’ federal claims are barred by the statute of limitations. Because section 1983 contains no statute of limitations, we apply the statute of limitations applicable to personal injury claims in the state in which the claim accrued. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996). The Montgomerys’ claims accrued in Arizona, which applies a two-year statute of limitations to personal injury actions. Ariz.Rev. Stat. § 12-542. The limitations period “accrues when a party knows or has reason to know of the injury” which forms the basis of the cause of action. Golden Gate Hotel Ass’n v. City & County of San Francisco, 18 F.3d 1482, 1486 (9th Cir.1994). The district court did not clearly err in determining that Robert Montgomery knew, or had reason to know, of the injury forming the basis of the federal claims in 1993. The claims are therefore barred. The Montgomerys assert that their federal claims arise from separate and distinct injuries caused by Kingman in 2005, and that their claims are therefore not barred by the statute of limitations. The Montgomerys’ theory of separate and distinct injury is asserted for the first time on appeal. The argument is therefore waived. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992). Because the Montgomerys’ separate and distinct injury argument depends on a factual record that was not developed in the district court, we also decline the Mont-gomerys’ request for consideration of their argument as raising a pure issue of law. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir.2006), citing Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985). The Montgomerys also assert that one or more disputes of fact exist regarding the policy that gave rise to their injuries, i.e., Kingman’s policy of restricting access to the airstrip of Kingman Airport where “through-the-fenee” aeronautical services are offered or provided to the public. The disputes of fact asserted by the Montgom-erys are not material. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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Chief Judge KOZINSKI, dissenting: The Supreme Court has described reasonable suspicion as “some minimal level of objective justification” that is “obviously less demanding” than probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). My colleagues purport to apply this standard but, in fact, honor it in the breach. In Sokolow, the Court found reasonable suspicion to detain a man so that his luggage could be sniffed by a drug dog, just as in our case. Sokolow waited for the dog for three hours, six times as long as Motley. 490 U.S. at 5, 109 S.Ct. 1581. Sokolow was traveling from Honolulu to Miami under a fake name for two days in July. Id. at 3, 5,109 S.Ct. 1581. He bought his ticket with cash, checked no luggage and appeared nervous. Id. The Court recognized that “[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel.” Id. at 9, 109 S.Ct. 1581. Still, the Court explained, the facts “taken together ... amount to reasonable suspicion” that Soko-low was carrying narcotics. Id. at 9, 109 S.Ct. 1581. The majority works hard to come up with possible innocent explanations for Motley’s odd behavior, like maybe he was able to maintain his extravagant lifestyle through luck or skill at gambling. Maj. at 448. And Sokolow could have been traveling to Miami under a false name in the middle of the summer because he needed embarrassing surgery. 490 U.S. at 8, 109 S.Ct. 1581. Particularly risible is the majority’s intimation that Motley might have broken into his room safe because he got tired of waiting for maintenance to show up. No doubt hotel guests tear open their room safes every day because of lazy locksmiths; it must be a leading source of lost revenue for the hotel industry. The hotel where Motley was living and gambling gave him its highest grade for gamblers, Seven Stars. It had every reason to avoid losing a high roller who was a steady source of profit, and certainly would have been very careful to avoid exaggerating or making up incriminating facts. That alone gives the security director’s report to the police sufficient weight to provide a “minimal level of objective justification.” 490 U.S. at 7, 109 S.Ct. 1581 (quoting Delgado, 466 U.S. at 217,104 S.Ct. 1758). The majority also works hard to undermine the reliability of the informant, maj. at 447-48, and I agree that he could have been more reliable. But what my colleagues overlook is that, had the informant been reliable, the tip alone would have provided probable cause, not merely reasonable suspicion. No matter how much we discount the informant’s story, even the majority admits it must be given some weight. Maj. at 447 (“little weight”); id. at 7, 109 S.Ct. 1581 (“minimal weight”). And that weight cannot be further discounted as having a possible innocent explanation. When we take that “little weight” or “minimal weight” and add it to the information from the hotel security director, the police here certainly had as much or more than, say, in Terry v. Ohio, where all they knew was that the suspect had walked up and down the block a few times and looked into a store window. 392 *450U.S. 1, 6, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We got reversed in Sokolow for doing precisely what we’re doing today. It could happen again and this time there may not even be the comfort of a dissent.

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MEMORANDUM ** Guanzan Jin, a native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s (“IJ”) order denying Jin’s application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition. 1. The IJ’s adverse credibility determination, which the BIA expressly adopted, is not supported by substantial evidence. See Li v. Holder, 559 F.3d 1096, 1102 (9th Cir.2009) (substantial evidence standard); Mendez-Mendez v. Mukasey, 525 F.3d 828, 832 (9th Cir.2008) (judicial review limited to BIA decision except to the extent BIA expressly adopts IJ opinion). The IJ viewed a letter from Jin’s pastor with “great suspicion” because the telephone number listed for the church was the same as the telephone number that Jin provided in his asylum application. Instead of asking Jin to explain why the telephone numbers matched, the IJ engaged in an indirect and largely irrelevant line of questioning focused on whether church business was conducted out of Jin’s home. Because the IJ did not afford Jin an opportunity clarify the perceived ambiguity in the evidence, the IJ could not rely on it as a basis for her adverse credibility determination.1 See Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir.2004). The letter also incorrectly stated that Jin had been a deacon at the church since July 2003; however, Jin explained that he had been a member of the church since that time, that he had become a deacon later, and that his pastor had mistakenly conflated the two events. Even if Jin had not offered a reasonable explanation for this error in the letter, it was an invalid basis for an adverse credibility determination because it was only indirectly related to Jin’s asylum.2 See Li, 559 F.3d at 1106 *452(issues that do “not go to the heart of his claim [have] little bearing on the veracity of the persecution he describes”). Nor do the IJ’s other findings constitute substantial evidence supporting an adverse credibility determination. Her finding that it “does not make sense for a Christian” not to be baptized was based on her “personal and overly narrow conception of baptism.” See Cosa v. Mukasey, 543 F.3d 1066, 1070 (9th Cir.2008). The IJ imper-missibly drew adverse inferences from Jin’s failure to obtain corroborating testimony from abroad, see Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000), and she demonstrated a lack of knowledge about how the Chinese calculate age when she incorrectly concluded that Jin’s testimony as to his age conflicted with the birth date listed on his hospital release certificate. The IJ’s conclusion that Jin had not demonstrated knowledge of his faith is contrary to Jin’s correct answers to each question about Christianity and his detailed descriptions of the faith. The IJ also found inconsistencies in Jin’s accounts of the police raid on his church service and of his hospital stay, where, in fact, the record reveals no meaningful discrepancies in his story. Finally, to the extent that the IJ based her adverse credibility determination on Jin’s demeanor, she failed to provide a specific and cogent reference to non-credible aspects of his demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003). 2. The BIA erred in concluding that, even if Jin were found credible, he failed to establish that he was a victim of past persecution or has a well-founded fear of persecution. See Mendez-Mendez, 525 F.3d at 832 (legal questions reviewed de novo). Jin’s account of fines, imprisonment, and beatings at the hands of Chinese authorities is sufficient to establish past persecution. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir.2004) (cumulative impact of physical assaults and economic harassment compelled finding of persecution). We therefore remand to the BIA for consideration of the remaining issues pursuant to INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). PETITION GRANTED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . During oral argument, Jin's counsel suggested that the telephone number on the letter actually belonged to a friend of Jin’s who spoke English. It might be reasonable for Jin, who does not speak English, to use an English — speaking friend’s telephone number on all of his documents. While we do not rely upon counsel’s explanation because it is beyond the record, we mention it because it illustrates that, had the IJ provided Jin the opportunity to explain the phone number, Jin may have been able to provide a reasonable explanation. . Section 101(a)(3) of the REAL ID Act eliminated the requirement that a basis for an adverse credibility determination must go to the heart of an immigrant’s claim of persecution. 8 U.S.C. § 1158(b)(l)(B)(iii). Because *452Jin filed his application for relief before May 11, 2005, that provision is inapplicable here. See In Re S-B-, 24 I. & N. Dec. 42 (BIA 2006).

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MEMORANDUM * Petitioner Vouty Thol (“Thol”) appeals from the denial of his 28 U.S.C. § 2254 habeas petition, arguing that a jury instruction error had a substantial and injurious effect on the jury’s verdict in his case. We review the district court’s ruling de novo, Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir.2009), and we affirm.1 Thol was tried and convicted of first degree attempted murder and, in the alternative, first degree assault of Bunny Vath (“Vath”). The Washington state court entered judgment and sentenced Thol on the first degree attempted murder charge only. Thol appealed, contending that his conviction and sentence should be reversed because of a faulty jury instruction. The Washington Court of Appeals acknowledged that the accomplice liability instruction given at Thol’s trial was similar to one found to be defective by the Washington *454Supreme Court. State v. Trujillo, 112 Wash.App. 390, 49 P.3d 935, 941 (2002) (citing State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000)). Nevertheless, the Court of Appeals held that “because the record demonstrates conclusively that such error could not have materially affected the jury’s deliberations in this case ... [the error] was harmless beyond a reasonable doubt.” Id. Contrary to Thol’s assertion in the original briefing, we do not review the Court of Appeals’ decision under a structural error standard. Rather, following the Supreme Court’s directive in Hedgpeth v. Pulido, - U.S. -, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008), we consider the Court of Appeals’ decision under the “substantial and injurious effect” standard established in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The Court of Appeals determined that the record supported Thol’s conviction as a principal, rendering harmless any jury instruction error regarding accomplice liability. The Court of Appeals analyzed Thol’s claim using the proper harmless error standard, as defined by Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In determining that it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,” id. at 18,119 S.Ct. 1827, the Court of Appeals conducted a thorough examination of the record to determine “whether the record contains evidence that could rationally lead to a contrary finding with respect” to the error. Id. at 19, 119 S.Ct. 1827. The Court of Appeals detailed Thol’s involvement in the attack on Vath, including his recruitment, his attendance at a planning gathering that occurred just before the attack, witness testimony that Thol was present when one of the men detailed the group’s plan to “[k]nock on the door and shoot,” and his presence in one of the vehicles used in the attack. The Court of Appeals’ conclusion was not contrary to nor based on an unreasonable application of Supreme Court law. See 28 U.S.C. § 2254(d). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Thol's Unopposed Motion to Enlarge the Record is granted except as to the two declarations of the allegedly recanting witnesses. Thol's Motion seeking Judicial Notice of Portions of the State Court Record is granted except to the extent such documents were not part of the record before the Washington State Court of Appeals. Waddington's Motion to Strike Supplemental Excerpts of Record is denied as moot because Thol agreed to exclude the declarations referenced above.

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MEMORANDUM *** Lorena Landero-Guzman (“Landero”) petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) pretermission of her application for cancellation of removal. The IJ and BIA found that solicitation of possession of narcotic drugs for sale, for which Landero had been convicted under Arizona law (ARiz. Rev. Stat. §§ 13-1002, -3408), was a crime involving moral turpitude (“CIMT”), and that Landero was therefore ineligible for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition for review. Landero contends that the statute under which she was convicted includes conduct beyond ordinary drug trafficking; therefore, that her crime was not a CIMT under the categorical approach. We disagree. Arizona law distinguishes between the possession of a narcotic drug for sale, Ariz. Rev.Stat. §§ 13-3408(A)(2), and the less serious crime of possession or use of a narcotic drug, Ariz.Rev.Stat. §§ 13-3408(A)(1). Landero’s argument that she could have been convicted of solicitation of the more serious offense merely for attempting to purchase drugs for personal use, or even for making statements in support of drug trafficking, is a highly dubious interpretation of the statutory scheme. It was Landero’s burden, therefore, to show that the State of Arizona had actually prosecuted an offender, either in her own or another case, for the less serious conduct that Landero contends is included in the statute. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (“To show that realistic *456possibility [of a nongeneric application of the statute], an offender ... may show that the statute was so applied in his own case ... or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”). Landero failed to adduce any such evidence; we therefore interpret the offense for which she was convicted as solicitation of a drug trafficking offense. We have held that drug trafficking crimes are CIMTs. See, e.g., Barragan-Lopez v. Mukasey, 508 F.3d 899, 903-04 (9th Cir.2007); Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir.1987). Because solicitation of an offense requires the intent that the substantive offense be committed, solicitation of a drug trafficking offense is also a CIMT. Barraqan-Lonez, 508 F.3d at 903-04. The petition for review is DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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CERTIFICATION OF QUESTIONS OF STATE LAW EBEL, Circuit Judge. Pursuant to 10th Cir. R. 27.1 and Okla. Stat tit. 20, § 1602, the United States Court of Appeals for the Tenth Circuit requests that the Oklahoma Supreme Court exercise its discretion to consider several certified questions of Oklahoma law which “may be determinative of an issue” in these appeals currently pending before this court and on which “there is no controlling” Oklahoma law. Okla. Stat. tit. 20, § 1602. I. FACTS In 1972, the Logan County, Oklahoma, Board of Commissioners, acting pursuant to state law, created Plaintiff-Appellee Ru*464ral Water, Sewer and Solid Waste Management District No. 1 (“Logan-1”) as “a non-profit association” that would provide water to rural Logan County, except for the area of the county located within the city limits of Guthrie, Oklahoma, as those limits existed at that time. Defendants-Appellants City of Guthrie, Oklahoma, and its Guthrie Public Works Authority (collectively “Guthrie”), already provided water service to the City itself. Beginning in 1976, Logan-1 obtained several loans from the United States Department of Agriculture (“USDA”). These loans were part of a program established in 1961, when “Congress amended the Consolidated Farm and Rural Development Act, 7 U.S.C. §§ 1921-2009n, to allow nonprofit water associations to borrow federal funds for ‘the conservation, development, use, and control of water ... primarily serving ... rural residents.’ ” Moongate Water Co. v. Dona Ana Mutual Domestic Water Consumers Ass’n, 420 F.3d 1082, 1084 (10th Cir.2005) (“Moon-gate Water”) (quoting 7 U.S.C. § 1926(a)(1)).1 Logan-1 obtained a total of five of these loans, two in 1976, and one each in 1978,1982 and 2003.2 Sometime in 2003, a land developer approached Guthrie, seeking water service for his planned development, the Pleasant Hills Apartments. No one disputes that this development is located within the geographic territory that the Logan County Commissioners assigned to Logan-1 in 1972. Nonetheless, it was Guthrie that extended its water system in order to provide Pleasant Hills with water service. As a result, Logan-1 sued Guthrie, in July 2005, claiming that Guthrie had unlawfully encroached on Logan-l’s service area, which was protected from competition by 7 U.S.C. § 1926(b) and the terms of its loan agreements which had been authorized by the Oklahoma legislature.3 Section 1926(b) protects any rural water district that remains indebted on loans obtained from the USDA from competition from other water districts “within the borrowing entity’s service area.” Doña Ana Mut. Domestic Water Consumers Ass’n v. City of Las Cruces, 516 F.3d 900, 902-03 (10th Cir.2008) (“Doña Ana”). Section 1926(b) specifically provides: The service provided or made available through any [indebted rural water] association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit *465as a condition to continuing to serve the area served by the association at the time of the occurrence of such event. 7 U.S.C. § 1926(b). Section 1926(b)’s protection serves two goals. See Pittsburg County, 358 F.3d at 715. First, it provides “greater security for the federal loans made under the program.” Id. (quotation omitted). By protecting the territory served by such an association facility against competitive facilities, which might otherwise be developed with the expansion of the boundaries of municipal and other public bodies into an area served by the rural system, § 1926 protects the financial interests of the United States, which is a secured creditor of the water association, from reduction of the water association’s revenue base. Id. (quotation, citation omitted). “The second interest” served by § 1926(b)’s protection from competition “is the promotion of rural water development by expanding the number of potential users of such systems, thereby decreasing the per-user cost.” Id. (quotation omitted). “[T]o receive the protection against competition provided by § 1926(b) a water association must (1) have a continuing indebtedness [under loans obtained from] the federal government, and (2) have provided or made available service to the disputed area.” Moongate Water, 420 F.3d at 1084 (quotation, alteration omitted). Thus, this court has held that a water district’s service area protected from competition under 7 U.S.C. § 1926(b) is not necessarily the entire geographic area granted to the district under state law, but is instead the area 1) for which the water district has a right, under state law, to provide service and 2) has actually done so, or could do so in reasonable time. See Sequoyah County, 191 F.3d at 1201-03. In addition to these principles defining the protection § 1926(b) affords rural water districts from competition, state law cannot change the service area to which the protection applies, after that federal protection has attached. See Pittsburg County, 358 F.3d at 715. For instance, “where the federal § 1926 protections have attached, § 1926 preempts local or state law that can be used to justify a municipality’s encroachment upon disputed area in which an indebted association is legally providing service under state law.” Pitts-burg County, 358 F.3d at 715 (quotation, alteration omitted). II. SUMMARY OF LEGAL DISPUTE In the appeals pending before this court, Logan-1 contends that it has authority, under Okla. Stat. tit. 82, § 1324.10(A)(4), to enter into loan agreements with the USDA that include § 1926(b)’s protection from competition,4 and that, having done so, it is entitled here to claim that *466§ 1926(b) protects its right to serve Pleasant Hills from competition from Guthrie. Guthrie does not appear to dispute that Okla. Stat. tit. 82, § 1324.10(A)(4) authorizes Logan-1 generally to obtain federal loans, but Guthrie argues that, because Logan-l’s USDA loans include the § 1926(b) protection from competition, those loans are contrary to the Oklahoma Constitution, which provides that “[t]he Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.” Okla. Const, art., 5, § 51. Although Guthrie phrases this argument in several different ways, Guthrie’s contention is that the Oklahoma legislature’s enactment of Okla. Stat. tit. 82, § 1324.10 violates Okla. Const, art. 5, § 51 to the extent that § 1324.10(A)(4) authorizes Logan-1 to enter into loans with the USDA that must, as a matter of federal law, contain the protection against competition afforded rural water districts under 7 U.S.C. § 1926(b). The parties point to three cases, two from Oklahoma and one from this court, that they contend are particularly relevant to this issue. Guthrie relies upon Comanche County Rural Water District No. 1 v. City of Lawton, 501 P.2d 490 (Okla.1972), and Rural Water & Sewer District No. 4 v. Coppage, 47 P.3d 872 (Okla.2002), to support its argument that Logan-1 lacks state-law authority to enter into loan agreements with the USDA that include the § 1926(b) protection from competition. Comanche County and Coppage both appear to indicate that if the Oklahoma legislature granted a water district an “exclusive franchise,” that would violate Okla. Const, art. 5, § 51. See Coppage, 47 P.3d at 875-76; Comanche County, 501 P.2d at 492-93. The issue presented in this case is whether the Oklahoma Constitution prohibits Logan-1 from claiming an exclusive right to serve a prospective, but not current, customer located within its assigned service area provided that Logan-1 has the legal right and present ability to provide water service to such a prospective customer. On this issue, Logan-1 argues the Oklahoma Constitution does not prevent it from asserting such an exclusive right under § 1926(b), and Guthrie argues that the Oklahoma Constitution does prohibit Logan-1 from asserting such an exclusive right under § 1926(b). Logan-1, in arguing that its claimed § 1926(b) protection is not contrary to Okla. Const, art. 5, § 51, relies upon Glenpool Utility Services Authority v. Creek County Rural Water District No. 2, 861 F.2d 1211 (10th Cir.1988), which this court decided after Comanche County, but before Coppage. Glenpool held that the § 1926(b) protection Logan-1 claims did not violate Oklahoma Constitution, art. 5, § 51, because 1) any exclusive right that stems from § 1926(b) comes from Congress, and not the Oklahoma legislature; 2) the § 1926(b) protection should be viewed as a contract condition and a security provision rather than an exclusive franchise granted by the state; and 3) any such right that Congress granted is only temporary, rather than permanent, because it is contingent on the continuing existence of a federal debt owed by the protected water district, which the district or the State of Oklahoma could pay off whenever it wishes. See Glenpool, 861 F.2d at 1216. In addition to this argument, Logan-1 offers an alternative argument in support of its claimed § 1926(b) protection from competition. Logan-1 asserts that, even if its loans incorporating the § 1926(b) protection are contrary to Okla. Const, art. 5, § 51, Oklahoma recognizes exceptions to that state constitutional prohibition that would apply in this case. In Glenpool, for instance, this court noted that “Oklahoma *467case law contains clear reference to exemptions from article 5, § 51 on the basis of police power needed for the public interest, and on the basis of status as a state ‘agency.’ ” 861 F.2d at 1216 n. 2 (citations omitted); see also Kimery v. Pub. Serv. Co. of Okla., 622 P.2d 1066, 1071 (Okla.1980) (holding, in applying Okla. Const, art. 5, § 51, that “[w]here a statute touches upon the public health and welfare, the statute cannot be deemed unconstitutional class legislation, even though a specific class of persons or businesses is singled out, where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good”); Estate of Cabelka ex rel. Cabelka v. Comanche County Hosp., 87 P.3d 1101, 1103 (Okla.Civ.App.2003) (noting suggestion that extending governmental immunity to private or non-public entities would implicate Okla. Const, art. 5, § 51’s prohibition against the legislature granting exclusive rights, privileges or immunities). Logan-1 invokes these exemptions, and specifically points to the Oklahoma Supreme Court’s decision in Public Service Company of Oklahoma v. Caddo Elec. Coop., 479 P.2d 572 (Okla.1970) (“Caddo ”), as support for its assertion of a police power or public safety exemption to Okla. Const, art. 5, § 51. Caddo addressed a state law that provided a rural electric utility protection from competition much like the protection afforded by § 1926(b). See Caddo, 479 P.2d at 575. The Oklahoma Supreme Court held that state-law protection did not violate Okla. Const, art. 5, § 51’s prohibition against exclusive franchises because it was a “proper exercise of police power” aimed at promoting rural electric service while avoiding the wasteful duplication of such services. See Caddo, 479 P.2d at 577-81. III. QUESTIONS Although we recognize our obligation to interpret and apply federal law independently, the parties’ arguments presented in these appeals also require us to apply Oklahoma law. And we are obligated to apply Oklahoma law as decided by the Oklahoma Supreme Court. It is the interpretation of Oklahoma law about which we request guidance here. Therefore, based upon the legal dispute described above, we certify to the Oklahoma Supreme Court the following questions: 1. Whether Okla. Const, art. 5, § 51 precludes Logan-1 from either entering into loan agreements with the USDA that include 7 U.S.C. § 1926(b)’s protection from competition, or enforcing its claimed § 1926(b) protection against other Oklahoma water districts? 2. If either is so, whether there is a police power or public safety exception to the Oklahoma Constitution, art. 5, § 51’s prohibition against exclusive rights, privileges or immunities that would, nevertheless, validate Logan-l’s loan agreements with the USDA that include the § 1926(b) protection from competition in this case involving provision of a rural public water service? IV. PROCEDURAL ORDERS IMPLEMENTING CERTIFICATION We appreciate the Oklahoma Supreme Court’s consideration of these certified questions of Oklahoma law. And we recognize that, if the Oklahoma Supreme Court accepts these certified questions, it may, “[p]ursuant to Okla. Stat. tit., 20, §§ 1602.1 and 1604(A)(3), ... reformulate th[ese] question[s] of law.” Pino v. United States, 507 F.3d 1233, 1238 (10th Cir.2007). We direct the clerk of this court to transmit a copy of this certification order to the parties and to forward a copy of this order, together with the parties’ briefs (which also display the names and addresses of counsel of record, see Okla. Stat. tit. 20, § 1604(A)(4)), to the Okla*468homa Supreme Court pursuant to Okla. Stat. tit. 20, § 1603.1. Pino, 507 F.3d at 1238. We also direct the clerk of this court to transmit a copy of this certification order to the Clerk of the United States District Court for the Western District of Oklahoma, attention case No. 05-cv-0078-R, See Ball v. Wilshire Ins. Co., 498 F.3d 1084, 1086 (10th Cir.2007). “The treatment of any costs associated with the certification proceedings should be as prescribed by ... Okla. Stat. tit. 20, § 1606.” Randall v. Travelers Cas. & Sur. Co., 450 F.3d 1115, 1117 (10th Cir.2006). Pursuant to Tenth Circuit R. 27.1(A), we stay these appeals pending the Oklahoma Supreme Court’s consideration of this certification request and, if the request is accepted, the Oklahoma Supreme Court’s resolution of these certified questions. See Ball, 498 F.3d at 1086; Randall, 450 F.3d at 1117. . Originally the Farmers Home Administration (“FmHA”) administered these loans. See Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 701 (10th Cir.2004) ("Pittsburg County”). Since 1994, however, the Department of Agriculture has operated this loan program, see id. at 701 n. 1, through its Rural Utilities Service. See Rural Water Dist. No. 1. Ellsworth County v. City of Wilson, 243 F.3d 1263, 1269 n. 3 (10th Cir.2001) (citing 7 C.F.R. § 1780.3). . In 1987, the USDA sold the first four of these loans to Community Program Loan Trust 1987A, a special purpose Massachusetts business trust. That fact, however, does not affect the questions we certify here to the Oklahoma Supreme Court. See Moongate Water Co. v. Butterfield Park Mut. Domestic Water Ass’n, 291 F.3d 1262, 1265-67 (10th Cir.2002) (holding transfer of USDA loans to private lenders did not extinguish a rural water district’s indebted on those loans for purposes of § 1926(b)); see also Sequoyah County Rural Water Dist. No. 7 v. Town of Muldrow, 191 F.3d 1192, 1198 (10th Cir.1999). .Oklahoma Stat. tit. 82, § 1324.10(A)(4). . Oklahoma Stat. tit. 82, § 1324.10(A)(4) provides: Every district incorporated hereunder ... shall have power to: (4) Borrow money and otherwise contract indebtedness for the purposes set forth in this act, and, without limitation of the generality of the foregoing, to borrow money and accept grants from the United States of America, or from any corporation or agency created or designated by the United States of America, and, in connection with such loan or grant, to enter into such agreements as the United States of America or such corporation or agency may require: and to issue its notes or obligations therefor, and to secure the payment thereof by mortgage, pledge or deed or trust on all or any property, assets, franchises, rights, privileges, licenses, rights-of-way, easements, revenues, or income of the said district. Okla. Stat. tit. 82, § 1324.10(A) (emphasis added) (footnote omitted).

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Judgment PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

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JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is ORDERED AND ADJUDGED that the district court’s order filed July 8, 2008, 2008 WL 2686817, be affirmed. The district court properly dismissed appellant’s *622complaint, because it did not state a claim within the meaning of the False Claims Act, 31 U.S.C. § 3729(a). See generally U.S. ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 393 F.3d 1321 (D.C.Cir.2005). And even though the gravamen of the complaint was a violation of the False Claims Act, appellant waived that argument on appeal, by arguing instead, and for the first time, an Eighth Amendment willful and deliberate indifference claim. See Potter v. District of Columbia, 558 F.3d 542, 547 (D.C.Cir.2009) (and cases cited therein) (this court reviews only those arguments that were made in the district court); Ben-Kotel v. Howard University, 319 F.3d 532, 535 (D.C.Cir.2003) (the court of appeals does not entertain an argument made for the first time on appeal). Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.

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SUMMARY ORDER Plaintiff-appellant John G. Donovan appeals from a judgment of the United States District Court for the Eastern District of New York (Lindsay, M.J.) entered on March 12, 2008, following a jury trial, in favor of defendants-appellees. We assume *627the parties’ familiarity with the underlying facts and procedural history of the case. Donovan challenges four evidentiary rulings by the district court, arguing that the harm resulting from those rulings, both individually and collectively, warrants a new trial. We review a district court’s decision to exclude evidence for abuse of discretion. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 136 (2d Cir.2008). Even where a district court erroneously excludes evidence, “a new trial should be granted only if a substantial right of a party is affected — as when a jury’s judgment would be swayed in a material fashion by the error.” Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). In light of this standard, it is plain that none of Donovan’s challenges has merit. Donovan contends that the district court should have permitted him to testify about events occurring prior to August 5, 2002, notwithstanding the fact that those events fell outside the applicable statute-of-limitations period, because in a retaliation case such as this one, where causation is at issue, “evidence regarding time-barred adverse acts is ahvays relevant and admissible as background evidence in support of the plaintiffs timely claims.” Appellant’s Br. at 25 (emphasis added). Specifically, Donovan argues that he should have been allowed to testify that (1) he resigned from the Police Benevolent Association (“PBA”) Executive Board in 2002 because he thought that doing so would help him get promoted, and (2) he thought he had been passed over for promotions prior to 2002 because he was a member of the PBA Executive Board. As an initial matter, Donovan’s understanding of the law is incorrect. See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (stating in the Title VII context that time-barred acts “ ‘may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue’” (emphasis added) (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977))); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1211 (2d Cir.1993) (concluding that Evans “merely states that earlier discriminatory acts may constitute relevant background evidence” (internal quotation marks omitted)). Furthermore, we see no abuse of discretion in the district court’s rulings that (1) Donovan’s reason for leaving the PBA Executive Board in 2002 was irrelevant, and (2) Donovan’s own thoughts as to why he was passed over for promotions was unduly prejudicial, given that the issue being tried was whether the defendants’ decision not to promote Donovan in 2005 was made in retaliation for his support of Andrew Cher-noff, a non-incumbent candidate in the election for the Board of Trustees. Donovan next challenges the district court’s decision to exclude testimony from Donovan’s supervisor, Lieutenant Frisenda, about Donovan’s generally positive job performance. Donovan offered this testimony for two purposes: (1) to show that the Board of Trustees’ reliance on three specific negative incidents involving Donovan was pretextual; and (2) to rebut comments made by defense counsel during his opening statement. With respect to the first purpose, Frisenda conceded that he never provided any evaluation of Donovan’s job performance to any of the Trustees. Thus, we see no abuse of discretion in the district court’s ruling that this testimony was irrelevant. Further, assuming arguendo that the district court should have permitted Frisenda’s complete testimony to rebut defense counsel’s opening statement, that error was harmless given that Frisenda was permitted to testify that (1) Donovan regularly exceeded the *628minimum number of miles required on a patrol shift, and (2) Donovan never had formal disciplinary charges filed against him regarding any of the three incidents. Donovan asserts next that the district court abused its discretion when it prevented John Catanno, the PBA Board President, from answering a question about whether he had any fear of testifying at trial, because Catanno’s answer would have demonstrated that the defendants were aware of their own retaliatory acts vis-a-vis Donovan. What Catanno would have said had he been permitted to answer, however, is pure speculation because Donovan made no proffer during the trial as to what Catanno would testify to in response to the question. We note also that, to the extent Donovan offered Catanno’s testimony to prove that a defendant Trustee called the police chief to pass on the message that the officers should pressure Donovan to drop his suit, the district court properly excluded it as inadmissible hearsay.1 See Fed.R.Evid. 801(c), 802. Finally, Donovan challenges the district court’s decision to exclude two letters sent by the New York Civil Liberties Union to the Village of Málveme. The purported value of the letters appears to be that they could have permitted the jury to draw the inference that the defendants knew that Donovan was campaigning for Andrew Chernoff, and that the decision not to promote him was in retaliation for that activity. The district court did not abuse its discretion by excluding these letters. But assuming arguendo that it had, that error was harmless because the jury found that each defendant knew that Donovan was campaigning for Chernoff. We have considered all of Donovan’s arguments and find them to be without merit. Accordingly, for the reasons set forth above, the judgment of the district court is AFFIRMED. . Donovan argues also that the district court should have permitted testimony from Robert Donovan ("Robert”), his brother, regarding a conversation Robert had with the Chief of Police about Donovan. But although Robert testified about this conversation during his deposition, the trial transcript does not indicate that Robert was asked about the conversation during trial. Nor does Donovan point to anywhere in the trial record where the district judge actually decided to exclude this testimony.

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SUMMARY ORDER Defendant-appellant Norddeutsche Lan-desbank Girozentrale (“NORD/LB”) appeals from an amended judgment entered July 18, 2008, awarding plaintiff back pay, compensatory damages, punitive damages, attorneys’ fees, and costs after a jury trial. Plaintiff-appellee cross appeals from the judgment insofar as it reduces the jury’s punitive damages award to $600,000. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal. We review a district court’s evidentiary rulings under a deferential abuse of discretion standard “and give district court judges wide latitude in determining whether evidence is admissible at trial.” Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 148 (2d Cir.2001) (internal quotation marks omitted). Moreover, under Rule 61, an error in admitting evidence is not grounds for granting a new trial unless the error affects a party’s “substantial rights.” Fed. R.Civ.P. 61. ‘Whether an evidentiary error implicates a substantial right depends on the likelihood that the error affected the outcome of the case.... [A]n eviden-tiary error in a civil case is harmless unless [the appellant demonstrates that] it is likely that in some material respect the factfinder’s judgment was swayed by the error.” Tesser v. Bd. of Educ., 370 F.3d 314, 319 (2d Cir.2004) (second alteration in original; citations and internal quotation marks omitted). After thoroughly reviewing the trial record in this case, we conclude that none of the evidentiary rulings that NORD/LB challenges on appeal were an abuse of discretion. We also conclude that the district court did not err in permitting Zakre to present a hostile work environment claim to the jury. We review a lower court’s determination of the constitutionality of a punitive damages award de novo, Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), deferring to the district court’s findings of fact unless they are clearly erroneous, Motorola Credit Corp. v. Uzan, 509 F.3d 74, 81 (2d Cir.2007). A punitive damages award will not be upheld where it is so “grossly excessive” that it arbitrarily deprives the defendant of property. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-17, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), the Supreme Court set forth three categories of factors to be considered in assessing the validity of a punitive damage *631award. These factors include:. (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Id. at 574-75, 116 S.Ct. 1589. The district court properly analyzed the degree of reprehensibility of NORD/LB’s misconduct and the disparity between the actual harm suffered by Zakre and the punitive damages award in this ease. As to the third BMW factor, while Title VII does not provide for civil penalties, the New York City Administrative Code provides for civil penalties of no more than $125,000 for an unlawful discriminatory practice and no more than $250,000 if the discriminatory practice was the result of a “willful, wanton or malicious act” or if discriminatory harassment or violence occurred. N.Y. City Admin. Code § 8-126(a). Therefore, the district court did not err in reducing the punitive damages award in this case to $600,000. We have considered all of NORD/LB’s arguments and find them without merit. Therefore, the judgment of the district court is AFFIRMED.

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SUMMARY ORDER Plaintiff-Appellant Daniel Bruno appeals from the dismissal of two claims against the Defendant-Appellee, Metropolitan Transportation Authority (“MTA”) under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. (“FELA”). The United States District Court for the Southern District of New York (Marrero, J.) dismissed his first claim on the ground of failure to state a claim and dismissed his second claim because the three year statute of limitations had expired. We assume the parties’ familiarity with the underlying *636facts, procedural history, and issues on appeal. We review motions to dismiss de novo. Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir.2006). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, -U.S.-,--, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A complaint is not required to have “ ‘detailed factual allegations,’ but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 129 S.Ct. at 1950. Under FELA, any railroad engaging in interstate commerce “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45 U.S.C. § 51. To prevail on a FELA action, “the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d Cir.2006). We conclude that both of Bruno’s claims fail to pass this test. Bruno’s first claim is that he suffered “severe and disabling injuries” as a result of the MTA’s policy that requires its employees who are not on active work status to remain at home during working hours, unless they receive a “no work” status. Bruno’s claim is implausible on its face. The complaint fails to allege that the MTA had any duty to grant the no work status, or that there is any causal link between the MTA policy and Bruno’s injuries. Further, Bruno offers no facts apai't from conclusory assertions as to how the MTA’s denial of his no work status caused unspecified “severe and disabling injuries.” As such, this claim is frivolous. Bruno’s second claim also fails. Bruno’s complaint alleges that on or prior to September 13, 2001, the MTA assigned Bruno to work at or near the World Trade Center, and that he sustained “severe and disabling injuries” by reason of the MTA’s negligence. However, Bruno conceded at oral argument that, in the absence of fraud, he is precluded from bringing this claim by a general release he signed in connection with a previous lawsuit. Bruno also conceded that he has not pleaded fraud. Accordingly, Bruno’s claim is barred by the release. To the extent Bruno argues that the district court should have sua sponte granted him leave to amend his complaint to address this deficiency, he is incorrect. See, e.g., Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 106 (2d Cir.1998) (“[T]he district court did not abuse its discretion in granting summary judgment without sua sponte granting leave to replead.”); In re Am. Exp. Co. Shareholder Litig., 39 F.3d 395, 402 (2d Cir.1994) (“The district court surely did not abuse its discretion in not sua sponte granting leave to replead.”). Given the frivolousness of this appeal, appellee MTA may apply for damages and/or double costs. See Fed. R.App. P. 38. Therefore, the judgment of the district court is AFFIRMED.

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SUMMARY ORDER Defendants appeal a money judgment entered after a jury trial in favor of plaintiff Patricia Luca on her Title VII claim, see 42 U.S.C. § 2000e et seq., that defendants denied her employment as a police officer in retaliation for a lawsuit she filed charging her employer, the Nassau County Sheriffs Department, with sexual harassment. Defendants assert that the trial court (1) made comments that deprived them of a fair trial, (2) failed adequately to inquire about witness-juror contact, (3) improperly calculated front pay, and (4) improperly calculated attorneys’ fees. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision. 1. Fair Trial Claim a. The Comment to Eileen Creswell The crux of defendants’ fair trial claim concerns a colloquy between the district judge and defendant Eileen Creswell. In explaining at trial why defendants did not hire Luca as a police officer, Creswell testified that “criminal activity ... was swii’l-ing around [Luca].” Trial Tr. at 855. When Creswell attributed this information to a confidential source that she declined to name, the trial judge struck the testimony and admonished Creswell. Id. at 856. Soon thereafter, when Creswell testified that Luca’s car had been “used for an *639insurance scam,” the district court made the comment here at issue: “What insurance scam? I didn’t hear about insurance scam here. You sure you’re not making this all up? Next question.” Id. at 857. The comment prompted defendants to move for a mistrial, which the district court denied. Nevertheless, the judge charged the jury that at no time had he “expressed nor attempted to intimate an opinion about how [the jury] should decide” the case. Id. at 1055. The judge elaborated: “It could be that based upon who the witness was and the questions that I was asking the temptation might be great for you to think that the Judge was signaling something to you, that I believed the person or I didn’t believe the person, but I want you to resist that temptation.” Id. at 1056. The law governing defendants’ fair trial claim is well established: A district court “may actively participate [in a trial] and give its own impressions of the evidence or question witnesses, as an aid to the jury, so long as it does not step across the line and become an advocate for one side.” United States v. Filani, 74 F.Sd 878, 385 (2d Cir.1996). While a judge should strive to create an “atmosphere of perfect impartiality,” Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98 (2d Cir.1998) (internal quotation marks omitted), the law assures litigants a fair trial, not a perfect one, Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 436 (2d Cir.1993). Thus “[i]n reviewing a challenge to a trial judge’s conduct, we determine not whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid[, but] ... whether the judge’s behavior was so prejudicial that it denied [a party] a fair, as opposed to a perfect, trial.” Shah v. Pan Am. World Servs., Inc., 148 F.3d at 98 (internal quotation marks omitted, second and third alterations in original). In this case, we conclude that the “making this up” comment crossed the line of impartiality and would have been better left unsaid. Nevertheless, when viewed in the context of a six-day trial generating a transcript of over 1000 pages, we are not persuaded that the error was so prejudicial as to deny defendants a fair trial. Cf. Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265, 273-75 (2d Cir.1996) (vacating judgment where district court displayed “antipathy” to plaintiffs claim “[throughout the trial,” held plaintiffs attorney in contempt, and ordered local counsel to substitute for plaintiffs attorney without permitting adequate time for preparation); United States v. Filani, 74 F.3d at 386 (vacating judgment where, inter alia, “of the roughly 60 pages of the trial transcript covering appellant’s testimony, the trial judge substantively challenged the defendant on 16, or over 25 percent, of them”). The trial judge was careful to give a remedial instruction to cure any prejudice from its comment, and we have no reason to think that the jury could not follow this instruction. See United States v. White, 552 F.3d 240, 250 (2d Cir.2009) (holding, where defendant claimed supplemental jury charge expressed court’s negative assessment of his credibility, but court provided curative instruction, that “[w]e ordinarily presume that the jury adheres to curative instructions and see no reason to depart from that general rule here”); United States v. Cox, 324 F.3d 77, 87 (2d Cir.2003) (“[A]bsent evidence to the contrary, we presume that jurors remain true to their oath and conscientiously observe the instructions and admonitions of the court.” (internal quotation marks omitted, alteration in original)). *640b. Other Conduct To the extent defendants complain about other conduct by the trial judge, because no objection was raised in the district court, our review is limited to fundamental error, and we identify none in this case. See Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 795 (2d Cir.2002) (“In the civil context ... we reverse only if there has been fundamental error. Fundamental error is more egregious than the ‘plain’ error that can excuse a procedural default in a criminal trial, and is so serious and flagrant that it goes to the very integrity of the [proceeding].” (internal quotation marks omitted, alteration in original)). The limitations placed by the trial judge on defendants’ presentation of evidence fell well within his discretion in managing the examination of witnesses. See United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, AFL-CIO, 44 F.3d 1091, 1095 (2d Cir.1995). Nor are we persuaded that the trial judge erred by “generally injecting [himself] into trial.” Appellant Br. at 27. A trial judge must “set the tone of the proceedings and exercise sufficient control to insure that the trial will be an orderly one in which the jury will have the evidence clearly presented.” Anderson v. Great Lakes Dredge & Dock Co., 509 F.2d 1119, 1131 (2d Cir.1974). The record in this case demonstrates that the trial judge’s interventions, with the exception of the single comment discussed in the preceding section, served to clarify facts for the jury and to move the proceedings forward. Accordingly, we reject defendants’ misconduct claim as without merit. 2. Juror-Witness Contact Defendants complain that the district court mishandled an incident of juror-witness contact by failing to interview the juror involved. To secure reversal on this ground, defendants must demonstrate both juror misconduct and ensuing prejudice. United States v. Cox, 324 F.3d at 86; see also Manley v. AmBase Corp., 337 F.3d 237, 251 (2d Cir.2003) (“The issue ... is not the mere fact of [jury] infiltration ... but the nature of what has been infiltrated and the probability of prejudice.” (internal quotation marks omitted, alteration in original)). We generally review a trial court’s handling of alleged juror misconduct for abuse of discretion. United States v. Abrams, 137 F.3d 704, 708 (2d Cir.1998). Where, as here, no objection was raised at trial, we review only for fundamental error. Taylor v. Vt. Dep’t of Educ., 313 F.3d at 795. This case satisfies neither standard. After a juror and witness were observed in conversation during the lunch recess, the district court questioned the witness, who explained that he had not realized he was speaking with a juror and that their conversation had been limited to the previous night’s Yankees game. The court accepted this account and did not question the juror; nor was it asked to do so by any party. The court did, however, repeat to the entire jury its earlier admonition not to converse with anyone associated with the case. No objection was raised to this procedure. Because we recognize that in handling incidents of possible juror misconduct, a trial court confronts a “delicate and complex task,” we accord it “broad flexibility.” United States v. Cox, 324 F.3d at 86 (internal quotation marks omitted). The court must be sure that any investigation it conducts does not “create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.” United States v. Abrams, 137 F.3d at 708. Moreover, “[i]n many instances, the court’s reiteration of its cautionary instructions to the jury is all that is neces*641sary.” Id. (internal quotation marks omitted). Applying these principles to this case, we are satisfied that the district judge was well positioned to assess the credibility of the witness’s explanation as to the circumstances and content of the conversation at issue and to determine without further inquiry of the juror that the fairness of the trial had not been compromised. Accordingly, we identify no error, let alone fundamental error. 3. The Award of Front Pay On this appeal, defendants do not challenge the district court’s decision to award front pay, but only the amount of its award: $604,589, which represents the difference between what Luca would have earned as a probation officer and what she will earn as a corrections officer if she works until age sixty-two, reduced to present value. Defendants acknowledge that Luca testified that she intended to work until age sixty-two, but note that during her testimony, she remarked that she intended to work for twenty-five years, or until age fifty-one, after which, in a colloquy with the court, she corrected herself. Defendants submit that on this record, any award of front-pay beyond three years was unduly speculative. We agree with Luca that defendants’ argument is essentially a challenge to the district court’s assessment of her credibility. In the absence of clear error, we defer to a district court’s credibility determinations, including its resolution of testimonial inconsistencies. See Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 76 (2d Cir.2005) (“[Cjlear error review mandates that we defer to the district court’s factual findings, particularly those involving credibility determinations.”); Mathie v. Fries, 121 F.3d 808, 811-12 (2d Cir.1997) (upholding decision of judge at bench trial to credit partially inconsistent testimony of plaintiff). Ordinarily, we will not disturb a trial court’s decision to credit live testimony unless the testimony is incoherent, facially implausible, or contradicted by extrinsic evidence. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). That is not this case. The trial judge was in the best position to determine whether Luca’s correction was bona fide, and we have no reason to disturb his assessment. See id. (observing that judge was in best position to observe “variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said”). In their reply brief and at argument, defendants urged that an award of this length was, as a matter of law, overly speculative and thus beyond the trial judge’s discretion. Leaving aside the question of whether this argument was adequately presented in defendants’ main brief, we find it meritless. We have repeatedly upheld awards of front pay through retirement where the record contained evidence sufficient to find that a plaintiff had “no reasonable prospect of obtaining comparable alternative employment” and to calculate the resulting salary disparity. Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 126 (2d Cir.1996); see also, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir.1992). Accordingly, we identify no error in the front-pay award. 4. Attorneys ’ Fees In calculating the award of attorneys’ fees, the district court looked to the prevailing hourly rates in both the Eastern and Southern Districts of New York. As we recently explained in Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir.2009), however, an examination of *642out-of-district rates is proper only in a narrow set of circumstances. Because the fees in this case were awarded prior to Simmons, the record is insufficient to determine whether those circumstances obtain here. Accordingly, the district court’s award of attorneys’ fees is vacated and remanded for further analysis in light of our decision in Simmons. We have reviewed defendants’ remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is VACATED and REMANDED for a new calculation of attorneys’ fees, and AFFIRMED in all other respects.

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SUMMARY ORDER Plaintiffs-appellants appeal from (1) the judgment of the United States District Court for the District of Connecticut (Ar-terton, J.), dismissing their claims against all defendants, and (2) the denial of their motion to modify the judgment to grant leave to file an amended complaint. We assume the parties’ familiarity with the underlying facts and procedural history of this case, as well as the issues presented on appeal. We conclude that the district court correctly held that the Consolidated Amended Complaint (the “Complaint”) failed to state a claim for securities fraud. Long before the price of Star Gas Partners, L.P. (“Star Gas”) securities fell in October 2004, the defendants disclosed customer attrition figures to the public and made it clear that Star Gas’s Business Improvement Plan (the “BIP”) was facing significant challenges.1 For example, in a *644July 2004 press release, defendant Sevin described the implementation of the BÍP as “particularly challenging” and disclosed that Star Gas’s operating income had decreased by approximately $4 million due in part to the effect of “an approximate 4% net customer loss resulting from both high energy prices and diminished service levels ... associated with the initial stages of [the BIP].” To the extent that any of Sevin’s earlier positive statements about the progress of the BIP could have misled investors, Sevin’s July 2004 disclosures defeat the claim that the October 2004 announcement “belatedly revealed” that Star Gas suffered high customer attrition principally related to the BIP, causing security prices to fall. Accordingly, the Complaint fails to adequately allege that any of Sev-in’s early positive statements concealed something from the market that, when disclosed in October 2004, caused the fall in securities prices. See Lentell v. Merrill Lynch & Co., 396 F.3d 161, 173 (2d Cir.2005). Further, although Sevin’s July 2004 disclosure also included positive statements about the BIP, including that “we are beginning to see many of the operational and customer satisfaction benefits originally anticipated” and that he was optimistic “because we have a company under control,” there is no “substantial likelihood” that a “reasonable investor would have considered [these statements] significant in making investment decisions.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161-62 (2d Cir.2000) (internal quotation marks omitted). Sevin’s positive statements about the BIP’s present stability were sufficiently vague and generalized that no reasonable investor would have relied upon them, particularly when coupled with Sevin’s concurrent disclosures about the BIP’s problems to date.2 As to Sevin’s forward-looking statements, the Complaint fails to allege facts supporting the conclusion that Sevin made optimistic statements in bad faith or without a reasonable basis. See San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 813 (2d Cir.1996). Because Sevin’s statements constitute mere “expressions of puffery and corporate optimism,” they “do not give rise to securities violations.” Rombach v. Chang, 355 F.3d 164, 174 (2d Cir.2004). We conclude also that the district court did not abuse its discretion in dismissing the Complaint with prejudice, despite plaintiffs-appellants’ footnote request in their opposition brief for leave to amend if the district court “deems the claims against Defendants insufficiently pleaded.” See In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006) (“It is within the court’s discretion to deny leave to amend implicitly by not addressing the request when leave is requested informally in a brief filed in opposition to a motion to dismiss.”). Nor did the district court abuse its discretion in denying plaintiffs-appellants’ motion to modify the judgment, see Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir.2007) (“Generally, we review a district court’s denial of a motion to amend under the abuse of discretion standard.”), even assuming arguendo the applicability of the *645liberal Rule 15(a) standard. See In re Star Gas Sec. Litig., 241 F.R.D. 428, 433 (D.Conn.2007) (denying plaintiffs’ motion “even taking into account the liberal policy of Rule 15(a)” (internal quotation marks omitted)). The district court gave plaintiffs-appellants the opportunity to amend the Complaint after a pre-motion telephone conference where the defendants described them arguments in favor of dismissal. Plaintiffs-appellants declined to do so. Thereafter, plaintiffs-appellants did not move to amend the Complaint after the defendants filed their briefs in support of dismissal. Although plaintiffs-appellants informally requested leave to amend in their motion papers, they did not submit proposed amendments or otherwise indicate how they would correct any deficiencies in the Complaint. Under these circumstances, it was within the district court’s discretion to dismiss the Complaint with prejudice. See Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir.2006) (per curiam) (rejecting “a broad rule to the effect that, in the case of a counseled plaintiff, abuse of discretion will be found and the case remanded whenever a district court fails to provide for repleading”). For the foregoing reasons, the judgment of the district court dismissing the Complaint and denying the post-judgment motion to amend the Complaint is AFFIRMED. . Although the Complaint raises additional fraud claims, plaintiffs-appellants conceded during oral argument that this appeal chai-*644lenges only the dismissal of their fraud claims arising from alleged misrepresentations about the progress of the BIP. . We note that plaintiffs-appellants' brief refers to allegedly misleading statements that appear only in their proposed Consolidated Second Amended Complaint, which they submitted to the district court after it dismissed the Complaint. Because these allegations were not included in the Complaint, we do not consider them in reviewing the district court's order of dismissal.

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