United States v. Slack

DLD-156 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ Nos. 25-1426 & 25-1427 ___________ ERIC BARTOLI, Appellant v. DIRECTOR FEDERAL BUREAU OF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 RECOMMENDED FOR PUBLICATION File Name: 25a0284n.06 Case No. 23-1640 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Jun 09, 2025 ) KELLY L. STEPHENS, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF DANYELLE AMUND PHILLIPS, JR., ) MICHIGAN Defendant-Appellant. ) ) OPINION Before: SUTTON, Chief Judge; CLAY and THAPAR, Circuit Judges. PER CURIAM. Danyelle Phillips Jr. pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In his plea agreement, Phillips reserved the right to seek appellate review of the district court’s determination that section 922(g)(1) does not violate the Constitution on its face. He does so now. But our court recently held that section 922(g)(1) is facially constitutional. United States v. Williams, 113 F.4th 637, 657 (6th Cir. 2024). As Phillips recognizes, this panel can’t overrule that decision, so we affirm.

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

Case: 24-50910 Document: 54-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 24-50910 June 10, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk United States of America, Plaintiff—Appellee, versus Cristobal Ibarra, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 5:24-CR-27-1 ______________________________ Before Wiener, Ho, and Ramirez, Circuit Judges. Per Curiam: * Cristobal Ibarra appeals his guilty plea conviction for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). At the time he committed the § 922(g)(1) offense of which he was convicted, Ibarra had multiple prior felony convictions, including a 2014 Arizona conviction for aggravated assault and a 2018 conviction for misconduct involving weapons. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.  Case: 24-50910 Document: 54-1 Page: 2 Date Filed: 06/10/2025 No. 24-50910 Ibarra argues that § 922(g)(1) exceeds Congress’s authority under the Commerce Clause and violates the Second Amendment, both facially and as applied to him, in light of the test set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The Government has filed an opposed motion for summary affirmance or, in the alternative, an extension of time to file a merits brief. Summary affirmance is appropriate if “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” United States v. Holy Land Found. For Relief & Dev., 445 F. 3d 771, 781 (5th Cir. 2006) (quoting Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)). The Government is correct that Ibarra’s constitutional challenges are foreclosed. See United States v. Diaz, 116 F.4th 458, 471-72 (5th Cir. 2024), petition for cert. filed (U.S. Feb. 18, 2025) (No. 24-6625); United States v. Bullock, 123 F.4th 183, 185 (5th Cir. 2024); United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014); United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013); see also United States v. Schnur, 132 F.4th 863, 867-70 (5th Cir. 2025). Because Diaz, Bullock, Traxler, and Alcantar are clearly dispositive, we affirm the district court’s judgment without further briefing. See United States v. Bailey, 924 F.3d 1289, 1290 (5th Cir. 2019). The motion for summary affirmance is GRANTED, the alternative motion for an extension of time is DENIED as moot, and the judgment of the district court is AFFIRMED. 2