United States v. Danyelle Amund Phillips, Jr.

NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ V.O.S. SELECTIONS, INC., PLASTIC SERVICES AND PRODUCTS, LLC, dba Genova Pipe, MICROKITS, LLC, FISHUSA INC., TERRY PRECISION CYCLING LLC, Plaintiffs-Appellees v. DONALD J. TRUMP, in his official capacity as Pres- ident of the United States, EXECUTIVE OFFICE OF THE PRESIDENT, UNITED STATES, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official ca- pacity as Acting Commissioner of the United States Customs and Border Protection, JAMIESON GREER, in his official capacity as United States Trade Representative, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, HOWARD LUTNICK, in his official capacity as Secretary of Commerce, UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendants-Appellants ______________________ 2025-1812 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00066-GSK-TMR-JAR, Judge Gary S. 2 V.O.S. SELECTIONS, INC. v. TRUMP Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ------------------------------------------------- STATE OF OREGON, STATE OF ARIZONA, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF ILLINOIS, STATE OF MAINE, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF VERMONT, Plaintiffs-Appellees v. PRESIDENT DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, KRISTI NOEM, Secretary of Homeland Security, in her official capacity as Secretary of the Department of Homeland Security, UNITED STATES CUSTOMS AND BORDER PROTECTION, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official capacity as Acting Commissioner for U.S. Customs and Border Protection, UNITED STATES, Defendants-Appellants ______________________ 2025-1813 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00077-GSK-TMR-JAR, Judge Gary S. Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ______________________ ON MOTION ______________________ V.O.S. SELECTIONS, INC. v. TRUMP 3 Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and STARK, Circuit Judges. 1 PER CURIAM. ORDER The United States’s motions for a stay of the United States Court of International Trade’s rulings enjoining cer- tain Executive Orders imposing tariffs, the Plaintiffs-Ap- pellees’ oppositions, and the United States’s reply were presented to all circuit judges of this court in regular active service who are not recused or disqualified. Both sides have made substantial arguments on the merits. Having considered the traditional stay factors, see Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 426 (2009), the court con- cludes a stay is warranted under the circumstances. See also Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415, 1415 (2025) (per curiam) (“The purpose of . . . interim equitable relief is not to conclusively determine the rights of the par- ties, but to balance the equities as the litigation moves for- ward.” (quoting Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017)). The court also concludes that these cases present issues of exceptional importance war- ranting expedited en banc consideration of the merits in the first instance. Accordingly, IT IS ORDERED THAT: (1) The motions for a stay pending appeal are granted. (2) All motions for leave to file briefs amicus curiae re- garding the stay motions are granted. (3) These consolidated cases will be heard en banc un- der 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 1 Circuit Judge Newman did not participate. 4 V.O.S. SELECTIONS, INC. v. TRUMP 40(g). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified in accordance with the provisions of 28 U.S.C. § 46(c). (4) Within two business days from the issuance of this order, the parties are directed to jointly file a proposed ex- pedited briefing schedule. The proposed briefing schedule should allow for this court to hold oral argument on July 31, 2025 at 10:00 A.M. in Courtroom 201. If the parties cannot agree upon a schedule, the joint submission should include the parties’ alternative proposals.

DLD-156 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ Nos. 25-1426 & 25-1427 ___________ ERIC BARTOLI, Appellant v. DIRECTOR FEDERAL BUREAU OF PRISONS; WARDEN LORETTO FCI ___________ ERIC BARTOLI, Appellant v. WARDEN LORETTO FCI ____________________________________ On Appeals from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action Nos. 3:23-cv-00204 & 3:23-cv-00057) Magistrate Judge: Honorable Patricia L. Dodge ____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 22, 2025 Before: RESTREPO, FREEMAN, and NYGAARD, Circuit Judges (Opinion filed: June 10, 2025) _________ OPINION * * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not  _________ PER CURIAM Pro se Appellant Eric Bartoli appeals from District Court orders dismissing his two petitions for writ of habeas corpus that he filed pursuant to 28 U.S.C. § 2241. We will affirm. I Bartoli fled to Peru after a grand jury indicted him for crimes related to his running a Ponzi scheme. Years later, he was arrested and extradited to face those charges in the United States District Court for the Northern District of Ohio. He pled guilty in that Court to charges related to that Ponzi scheme. Bartoli received a sentence of 20 years’ imprisonment and was ordered to pay $42 million in restitution. Bartoli’s direct appeal proved unsuccessful. See United States v. Bartoli, 728 F. App’x 424 (6th Cir. 2018), cert. denied, Bartoli v. United States, 587 U.S. 925 (2019). Bartoli then sought collateral relief by filing a motion pursuant to 28 U.S.C § 2255 See United States v. Bartoli, C.A. No. 23-3983, 2024 WL 4987352, at *1-2 (6th Cir. Dec. 5, 2024) (discussing Bartoli’s collateral proceedings). While Bartoli’s § 2255 proceedings were pending, he filed two § 2241 habeas corpus petitions in the Western District of Pennsylvania (where he was incarcerated) in April 2023 and September 2023. In his April 2023 petition, Bartoli argued that his extradition to the United States from Peru constitute binding precedent. 2 prior to his conviction was illegal and violated the Ex Post Facto Clause, and that trial counsel’s failure to raise this issue constituted ineffective assistance. In his September 2023 petition, Bartoli challenged the validity of his sentence pursuant to the Double Jeopardy and Due Process Clauses as well as the Eighth Amendment. On February 25, 2025, the District Court 1 dismissed both petitions for lack of jurisdiction. Bartoli appealed. This Court notified the parties that these appeals, which have since been consolidated, might be subject to summary action. Appellees filed responses to that notification. Bartoli did not. II We have jurisdiction under 28 U.S.C. § 1291. In reviewing the District Court’s dismissals of Bartoli’s § 2241 habeas corpus petitions, we exercise plenary review over its legal conclusions and review findings of fact for clear error. See O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005) (per curiam). We may summarily affirm the District Court’s decisions if the appeals fail to present a substantial question. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6; see also Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). III Section 2241 gives a District Court jurisdiction over “the petition of a federal prisoner who is [attacking] not the validity but the execution of his sentence.” Cardona v. 1 The parties consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1) in both cases. 3 Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). Here, however, Bartoli challeng

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-2577 D.C. No. Plaintiff - Appellee, 4:19-cr-06065-MKD-1 v. MEMORANDUM* HUGO SANCHEZ-MERINO, SPANISH INTERPRETER REQUIRED, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Mary K. Dimke, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Defendant Hugo Sanchez-Merino appeals the district court’s denial of his first, third, and fourth motions to dismiss criminal charges brought against him under 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  “We review de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 for illegal reentry when the motion is based on alleged due process defects in an underlying deportation proceeding.” United States v. Guizar- Rodriguez, 900 F.3d 1044, 1047 (9th Cir. 2018) (simplified). “We review the district court’s findings of fact for clear error.” United States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015) (simplified). 1. Section § 1326(d) bars a defendant charged with unlawful reentry from collaterally attacking their conviction unless they demonstrate that three conditions are met. United States v. Palomar-Santiago, 593 U.S. 321, 326 (2021). “The requirements are connected by the conjunctive ‘and,’ meaning defendants must meet all three.” Id. One of those conditions requires a defendant to demonstrate that the entry of the order against them was “fundamentally unfair.” 8 U.S.C. § 1326(d)(3). Under this prong, a defendant bears the burden of demonstrating that his due process rights were violated and that the defendant suffered prejudice as a result. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). To show prejudice, a defendant must show “that he had a plausible ground for relief from deportation.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (simplified). Even assuming his due process rights were violated, Sanchez-Merino cannot show he suffered prejudice here. Sanchez-Merino argues he suffered prejudice from alleged due process 2 24-2577 violations because he was a plausible candidate for relief from removal. He makes this argument with respect to both his May 2000 and August 2001 removal orders. But Sanchez-Merino cannot demonstrate that the reasons for his admissibility “establish that it would be in the interest of justice” for him “to avoid a formal removal order.” United States v. Cisneros-Resendiz, 656 F.3d 1015, 1021 (9th Cir. 2011) (simplified). The “factors directly relating to the issue of inadmissibility indicate” whether “the granting of [a] withdrawal would be in the interest of justice.” Id. at 1020. Here, Sanchez-Merino presented himself at the U.S. border and falsely claimed he was a U.S. citizen—showing customs officials a birth certificate belonging to somebody else. And fraudulently or willfully misrepresenting a material fact, including procuring fraudulent documentation, makes an arriving noncitizen inadmissible. See 8 U.S.C. § 1182(a)(6)(C)(i). So when a noncitizen “has willfully defied U.S. immigration laws by making a false claim of citizenship . . . the [immigration judge (“IJ”)] can reasonably decide that it is not in the ‘interest of justice’ to grant . . . relief from a formal removal order.” Cisneros-Resendiz, 656 F.3d at 1022. Factors such as Sanchez-Merino’s “age and family ties to the United States” are not relevant to this inquiry. See id. at 1021. Because he cannot show that he could plausibly have obtained approval to withdraw his application for admission, Sanchez-Merino fails to satisfy his burden of showing that he suffered 3 24-2577 prejudice. See United States v. Valdez-Novoa, 780 F.3d 906, 916 (9th Cir. 2015). 2

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL ALBARRAN, No. 24-2758 D.C. No. Petitioner - Appellant, 3:22-cv-05788-JNW v. MEMORANDUM* DAN WHITE, Respondent - Appellee. Appeal from the United States District Court for the Western District of Washington Jamal N. Whitehead, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Appellant Miguel Albarran (“Albarran”) appeals the district court’s dismissal of his federal habeas petition as untimely, contending he should be entitled to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). equitable tolling. We review de novo, Smith v. Davis, 953 F.3d 582, 587 (9th Cir. 2020) (en banc), and we affirm. Albarran was initially convicted of second-degree rape for assaulting his girlfriend’s thirteen-year-old daughter and sentenced to a mandatory twenty-five years in prison under Washington state law. He later brought an ineffective assistance of counsel claim against his trial counsel, alleging that his counsel did not adequately advise him to take a plea agreement. After unsuccessful state post- conviction proceedings ended, Albarran’s post-conviction counsel miscalculated a filing deadline and failed to timely file Albarran’s federal habeas petition. See 28 U.S.C. § 2244(d)(1). To qualify for equitable tolling to excuse this late filing, Albarran must demonstrate (1) diligent pursuit of his rights and (2) some extraordinary circumstance that prevented timely filing. See Holland v. Florida, 560 U.S. 631, 649 (2010). However, miscalculating filing deadlines is not an extraordinary circumstance but rather run-of-the-mill attorney error that “is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.” Lawrence v. Florida, 549 U.S. 327, 336–37 (2007); see also Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015) (“Attorney mistakes that warrant the label ‘garden variety’—like miscalculating a filing deadline—are the sort of mistakes that, regrettably, lawyers make all the 2 24-2758 time.”) (emphasis added). Thus, the district court properly rejected Albarran’s request for equitable tolling and dismissed his habeas petition as untimely. AFFIRMED. 3 24-2758

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-2404 D.C. No. Plaintiff - Appellee, 4:22-cr-06003-MKD-1 v. MEMORANDUM* TOMMIE SLACK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Mary K. Dimke, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Tommie Slack (“Appellant”) appeals his 108-month sentence following his guilty plea to possession with intent to distribute fentanyl under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vi). Appellant disputes the imposition of a two-level * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during commission of the offense. Reviewing the district court’s interpretation of the sentencing guidelines de novo and the application of those guidelines to the facts for abuse of discretion, United States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021), we have jurisdiction under 28 U.S.C. § 1291. We affirm. There was no error in the application of the firearm enhancement. Under U.S.S.G. § 2D1.1(b)(1), “the government simply bears the burden of proving that the weapon was possessed at the time of the offense.” United States v. Alaniz, 69 F.4th 1124, 1126–27 (9th Cir. 2023). The Government demonstrated constructive possession by bringing forward evidence tying Appellant to the vehicle where the firearm was found, including: a repair receipt for the vehicle in Appellant’s name, Appellant’s reference to the vehicle as “his Benz,” his fiancé taking control of the vehicle after his arrest, Appellant’s phone call with Agent Mitchell to challenge the removal of his personal items from the vehicle, and Appellant’s awareness of the vehicle’s change in performance after his arrest. Nor was there “clear error” in determining the cooperating defendant, who further tied Appellant to the vehicle and the firearm, was credible. See United States v. Baker, 58 F.4th 1109, 1126 (9th Cir. 2023). Together, these facts demonstrate “a sufficient connection between the defendant and the item to support the inference that the defendant exercised dominion and control over the item.” United States v. 2 24-2404 Baldon, 956 F.3d 1115, 1127 (9th Cir. 2020) (internal quotations omitted) (cleaned up). Nothing in the record suggests that there was improper reliance on U.S.S.G. § 1B1.3(a)(1)(b) as an alternative reason for applying the two-level firearm enhancement based on Appellant’s personal possession of the firearm under U.S.S.G. § 2D1.1(b)(1). AFFIRMED. 3 24-2404