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USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-24-2025 
USA v. Julio Suarez 
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Recommended Citation 
"USA v. Julio Suarez" (2025). 2025 Decisions. 590. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/590 
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Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
                  PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2419 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
JULIO POLANCO SUAREZ, aka Sandy, 
Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(District Court No. 3:18-cr-00121-001) 
District Judge:  Honorable Robert D. Mariani 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
May 20, 2025 
____________ 
 
Before:  PHIPPS, CHUNG, and ROTH, Circuit Judges 
 
(Filed: July 24, 2025) 
 
Frederick W. Ulrich 
Office of Federal Public Defender 
 
2 
 
100 Chestnut Street 
Suite 306 
Harrisburg, PA 17101 
Counsel for Appellant 
 
Carlo D. Marchioli 
Office of United States Attorney 
1501 N 6th Street, 2nd Floor 
Harrisburg, PA 17102 
Counsel for Appellee 
____________ 
 
OPINION OF THE COURT 
____________ 
 
CHUNG, Circuit Judge. 
 
Julio Suarez pleaded guilty to conspiracy to defraud the 
government and aggravated identity theft in connection with a 
scheme to file false federal income tax returns.  The District 
Court sentenced Suarez to seventy months in prison, a term of 
imprisonment at the top of his Guidelines range.  During the 
pendency of Suarez’s sentence, the Guidelines were amended 
in a way that provided for a lower Guidelines range.  Suarez 
subsequently moved for a sentence reduction under 18 U.S.C. 
§ 3582(c)(2), which the District Court denied.  On appeal, 
Suarez asserts that the District Court abused its discretion in 
various ways when denying his motion.  We disagree and will 
affirm. 
 
I. BACKGROUND 
 
 
3 
 
From March 2009 to September 2016, Suarez 
participated in a scheme to file false federal income tax returns 
to obtain refund checks.  Suarez’s role in the conspiracy was to 
negotiate the sale of the refund checks to check-cashing 
businesses and to provide the checks to his co-conspirators.  In 
April 2018, Suarez was charged with conspiracy to defraud the 
government, theft of government money, and aggravated 
identity theft.  In August 2019, pursuant to a plea agreement 
with the government, Suarez pleaded guilty to conspiracy to 
defraud the government, in violation of 18 U.S.C. § 286, and 
aggravated identity theft, in violation of 18 U.S.C. § 1028A.   
 
The District Court calculated a Sentencing Guidelines 
range of thirty-seven to forty-six months on the conspiracy 
count based in part on Suarez’s zero criminal history points.  
The aggravated identity theft count carried a two-year 
consecutive term of imprisonment.  Thus, Suarez’s total 
Guidelines range term of imprisonment was sixty-one to 
seventy months.  In April 2021, after assessing the Section 
3553(a) factors, the District Court sentenced Suarez to a total 
term of imprisonment of seventy months, including a sentence 
at the top of the Guidelines range for the conspiracy count.   
 
In December 2023, Suarez filed a pro se motion for a 
sentence reduction under 18 U.S.C. § 3582(c)(2) based on a 
2023 amendment to the Sentencing Guidelines, which altered 
the application of the Sentencing Guidelines to offenders with 
zero criminal history points.1  In his motion, Suarez requested 
 
1 The District Court later appointed the Federal Public 
Defender’s Office to represent Suarez.  Appointed counsel 
filed a new motion for a sentence reduction and a supporting 
 
 
4 
 
that the District Court reduce his sentence to fifty-four months, 
the bottom of his new Guidelines range.  In response, the 
government acknowledged Suarez’s eligibility for a reduction 
but recommended a sentence of sixty-one months, a sentence 
at the top of the amended Guidelines range.   
 
Although the District Court concluded that Suarez was 
eligible for a reduction, it declined to alter his sentence.  The 
District Court reiterated its reasoning from Suarez’s original 
sentencing and emphasized “a clear need…to impose a 
sentence that reflects the seriousness of [the] offense and 
promotes respect for the law and provides just punishment.”  
App. at 8.  It also “acknowledge[d] [Suarez’s] … commitment 
to positive behavior and participation in prison programs” but 
determined that his post-sentencing “activities [did not] 
diminish [Suarez’s] extensive and harmful criminal conduct.”  
App. at 9 (cleaned up). 
 
Suarez timely appealed. 
 
II. DISCUSSION2 
 
 
brief.  When we refer to Suarez’s motion, we refer to the 
counseled motion.   
 
2 The District Court had subject matter jurisdiction under 
18 U.S.C. §§ 3231 and 3582(c)(2).  This Court has jurisdiction 
under 28 U.S.C. § 1291.  We review a district court’s decision 
to deny a sentence reduction under 18 U.S.C. § 3582(c)(2) for 
abuse of discretion.  United States v. Mateo, 560 F.3d 152, 154 
(3d Cir. 2009). 
 
5 
 
Usually, federal courts “may not modify a term of 
imprisonment once it has been imposed.”  18 U.S.C. § 3582(c).  
Congress provided an exception to that rule “in the case of a 
defendant who has been sentenced to a term of imprisonment 
based on a sentencing range that has subsequently been 
lowered by the Sentencing Commission.”  § 3582(c)(2).  In 
those circumstances, Section 3582(c)(2) authorizes a court to 
“reduce the term of imprisonment, after considering the factors 
set forth in section 3553(a) to the extent that they are 
applicable, if such a reduction is consistent with applicable 
policy statements issued by the Sentencing Commission.”  Id. 
 
In determining whether to grant a sentence reduction 
under Section 3582(c)(2), a district court must undertake a 
“two-step inquiry.”  Dillon v. United States, 560 U.S. 817, 826 
(2010).  First, a district court must determine the defendant’s 
eligibility for a sentence reduction under U.S.S.G. § 1B1.10.  
Id. at 827.  Second, the district court must determine, in its 
discretion, whether to grant a reduction in view of the Section 
3553(a) factors and any applicable policies issued by the 
Sentencing Commission.  Id.; United States v. Styer, 573 F.3d 
151, 153 (3d Cir. 2009) (“The determination as to whether a 
reduction is warranted…is committed to the discretion of the 
district court.”). 
 
In this case, it is undisputed that Suarez is eligible for a 
sentence reduction at step one.  On appeal, Suarez challenges 
the District Court’s decision to deny his motion at step two.  He 
makes two arguments in support.  He first asserts that the 
District Court abused its discretion by improperly applying the 
Section 3553(a) factors.  Second, he contends that the District 
Court abused its discretion when it failed to justify an upward 
 
6 
 
variance from the amended Sentencing Guidelines.  We are not 
persuaded by either argument. 
 
A. The District Court’s Consideration of the Section 
3553(a) Factors 
 
The District Court did not abuse its discretion in 
applying the Section 3553(a) factors.  In denying Suarez’s 
motion, the District Court reconsidered and incorporated its 
original analysis and demonstrated that it considered all 
required factors under Section 3553(a).  See generally App. at 
7-9, 68-69; see also United States v. Begin, 696 F.3d 405, 411 
(3d Cir. 2012) (“The district court need not … make explicit 
findings as to each sentencing factor if the record makes clear 
that the court took all the factors into account.”).3  This 
includes considering “the nature and circumstances of the 
offense[s]” of conviction, § 3553(a)(1), under which the 
District Court noted that Suarez’s “criminal conduct was 
extensive,” continued over a period of seven years, involved 
“deliberate dishonesty and fraudulent intent … throughout the 
entire course of…conduct,” and cost the United States at least 
$1.5 million.  App. at 8.  Moreover, the District Court 
highlighted “[t]he need to maintain the sentence imposed ‘to 
reflect the seriousness of the offense, to promote respect for the 
law, and to provide just punishment for the offense.’”  App. at 
9 (quoting 18 U.S.C. § 3553(a)(2)(A)).  Finally, the District 
Court also “considered the need to ‘protect the public from 
further crimes [by Suarez]’” by denying the motion and 
 
3 Although Begin is a sentencing appeal rather than an 
appeal from a resentencing, in both instances, the court need 
not make explicit findings if the record is clear that the court 
took all sentencing factors into account. 
 
7 
 
concluding that a sentence that was at the top of the original 
Guidelines range was appropriate.  Id. (quoting 18 U.S.C. § 
3553(a)(2)(C)). 
 
Suarez argues that the District Court abused its 
discretion by failing to account for his rehabilitative efforts 
while incarcerated and by failing to adequately consider the 
aims of U.S.S.G. § 4C1.1.  Contrary to Suarez’s assertion, the 
District Court expressly “acknowledge[d] [Suarez’s] … 
commitment to positive behavior and participation in prison 
programs.”  Id. (cleaned up).  The District Court determined, 
however, that Suarez’s activities while incarcerated did not 
“diminish [his] extensive and harmful criminal conduct” such 
that a sentence reduction was warranted.  App. at 9.  Suarez’s 
disagreement lies only with the weight that the District Court 
afforded his rehabilitative efforts.  That disagreement, though, 
is no basis to vacate the District Court’s order.  See Styer, 573 
F.3d at 155 (a resentencing court’s “weighing and 
consideration of multiple factors, [is] expressly left to a court’s 
discretion, [and] is exactly the type of reasoned appraisal to 
which we defer on review.” (internal quotations omitted)).  
This is especially so where, as here, the “petitioner’s request 
for a sentence modification” is before “the same judge who had 
sentenced [the] petitioner originally.”  Chavez-Meza v. United 
States, 585 U.S. 109, 118 (2018).   
 
The same is true for Suarez’s argument that the District 
Court disregarded U.S.S.G. § 4C1.1’s recognition that zero-
point offenders pose little risk of recidivism.  The District 
Court expressly considered the Sentencing Commission’s 
reasons for passing U.S.S.G. § 4C1.1 but concluded that 
Suarez’s circumstances were sufficiently distinct “from the 
cases which prompted the addition of U.S.S.G. § 4C1.1.”  As 
 
8 
 
is also clear from the order on review, the District Court did 
not “focus[] on the need to protect the public to the exclusion 
of facts showing that the public is not at risk from” Suarez.  Br. 
at 12.  Accordingly, we detect no abuse of discretion in the 
District Court’s thorough and holistic application of the 
Section 3553(a) factors. 
 
B. Suarez’s Sentence is not an Upward Variance 
 
“Where a court varies, and a party has raised cogent 
objections with legal merit that the variance is unjustified by 
the record, we require the court to explain why the variance is 
justified, with explanations of the relevant sentencing factors 
that go beyond mere formalism.”  United States v. Ali, 508 F.3d 
136, 154 (3d Cir. 2007) (cleaned up); see also United States v. 
Merced, 603 F.3d 203, 216 (3d Cir. 2010).  Suarez argues that 
his seventy-month sentence is now effectively an upward 
variance from the amended Guidelines range, thereby 
requiring the District Court “to provide an explanation 
different from the one it reiterated from the earlier sentencing.”  
Br. at 14.  We disagree.  Suarez misunderstands the nature of 
Section 3582(c)(2) proceedings: a district court’s decision not 
to reduce a petitioner’s sentence does not constitute an upward 
variance from the amended Guidelines.  This is because “a 
district court proceeding under § 3582(c)(2) does not impose a 
new sentence in the usual sense.”  Dillon, 560 U.S. at 827.  Nor 
does such a proceeding amount to “a do-over of an original 
sentencing proceeding where a defendant is cloaked in rights 
mandated by statutory law and the Constitution.”  Styer, 573 
F.3d at 154 (quoting United States v. Tidwell, 178 F.3d 946, 
949 (7th Cir. 1999)); see also U.S.S.G. § 1B1.10(a)(3) 
(“[P]roceedings under 18 U.S.C. § 3582(c)(2) and this policy 
statement do not constitute a full resentencing of the 
 
9 
 
defendant.”).  Rather, a district court fulfills its obligations 
under Section 3582(c)(2) when it “consider[s] any applicable 
§ 3553(a) factors and determine[s] whether, in its 
discretion…the reduction authorized…is warranted in whole 
or in part under the particular circumstances of the case.”  
Dillon, 560 U.S. at 827.  While the calculation of an amended 
Guidelines range is a necessary part of this process, see § 
3553(a)(4), such a calculation does not transform the 
previously imposed, procedurally-sound sentence into an 
upward variance.  So long as a district court appropriately 
considers the Section 3553(a) factors, it need not re-justify its 
original sentence as if it were imposed anew under the 
amended Guidelines.  See U.S.S.G. § 1B1.10, cmt. (“The 
authorization of such a discretionary reduction does not 
otherwise affect the lawfulness of a previously imposed 
sentence.”).4  Because the District Court adequately considered 
 
4 This is not to say that we may “never…require a more 
detailed explanation” from a district court if it denies a 
petitioner’s motion in full or chooses a sentence reduction that 
is not “proportional” to the decrease in the petitioner’s 
recommended sentence under the amended Guidelines range.  
Chavez-Meza, 585 U.S. at 116, 119 (emphasis in the original).  
This is because the amount of explanation required 
“depends…upon the circumstances of the particular case.”  Id. 
at 116.  In some circumstances, for example, a “district court’s 
use of a barebones form order in response to a motion like 
petitioner’s would be inadequate.”  Id. at 119.  But those 
circumstances are not before us.  As explained above, the 
District Court’s Opinion reflects that it considered the Section 
3553(a) factors and expressly accounted for Suarez’s 
post-sentencing rehabilitative efforts. 
 
10 
 
the Section 3553(a) factors, we discern no abuse of discretion 
in its denial of Suarez’s motion. 
 
III. CONCLUSION 
 
For the reasons set forth above, we will affirm the 
judgment of the District Court. 


USA v. Julio Suarez

Sun Valley Orchards LLC v. United States Department of Labor

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-29-2025 
Aclekunle Onatolu v. Robert Mandelbaum 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Aclekunle Onatolu v. Robert Mandelbaum" (2025). 2025 Decisions. 601. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/601 
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DLD-186        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
  
No. 25-1684 
___________ 
 
ACLEKUNLE A. ONATOLU, 
   Appellant 
 
v. 
 
JUDGE ROBERT M. MANDELBAUM 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 1:25-cv-01131) 
District Judge:  Honorable Christine P. O’Hearn 
____________________________________ 
 
Submitted for Possible Dismissal Due to a Jurisdictional Defect or 
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
July 24, 2025 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed July 29, 2025) 
__________ 
 
OPINION* 
__________ 
PER CURIAM 
Pro se appellant Aclekunle A. Onatolu appeals the District Court’s order 
dismissing his complaint.  We will summarily affirm.  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
I. 
Onatolu filed a pro se complaint against the Honorable Robert M. Mandelbaum 
alleging discrimination and false imprisonment and sought $90,000 in damages for his 
pain and suffering.  The District Court granted Onatolu’s application to proceed in forma 
pauperis, screened the complaint pursuant to 28 U.S.C. § 1915, and dismissed the 
complaint without prejudice for failure to state a claim on the ground that Judge 
Mandelbaum is entitled to judicial immunity.1  The District Court did not provide 
Onatolu leave to amend his complaint.  Onatolu filed a notice of appeal on April 1, 2025, 
and subsequently filed an amended complaint on May 29, 2025.  The District Court has 
not ruled on the amended complaint. 
II. 
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.  While the 
District Court dismissed Onatolu’s complaint without prejudice, it did not grant him 
leave to amend his complaint.  Because the District Court’s order “terminated the suit so 
far as the court was concerned,” GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 198 
n.3 (3d Cir. 2001) (alterations and citations omitted), we understand the order to be final, 
see Merritts v. Richards, 62 F.4th 764, 772 n.4 (3d Cir. 2023).2  We exercise plenary 
review over the District Court’s order.  See Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 
 
1 The District Court also noted that the complaint may be untimely, and venue may be 
improper, as the claim pertained to a 2015 criminal matter in New York City.   
2 Onatolu’s amended complaint can be treated as a Rule 60(b) motion, see Ahmed v. 
Dragovich, 297 F.3d 201, 208 (3d Cir. 2002), but as it was filed more than 28 days after 
the District Court’s judgment, it does not impact the effectiveness of his notice of appeal, 
see generally Fed. R. App. P. 4(a)(4)(B)(i).  
 
3 
 
2020).  Dismissals for failure to state a claim under § 1915(e)(2)(B) are governed by the 
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 
12(b)(6).  See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).  This 
standard requires the Court to determine whether the complaint contains “sufficient 
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”  
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted).  Summary action 
is appropriate if there is no substantial question presented in the appeal.  See 3d Cir. 
L.A.R. 27.4.   
III. 
The District Court properly dismissed Onatolu’s complaint for failure to state a 
claim, noting that his claims against Judge Mandelbaum are barred by judicial immunity.  
Judges are immune from civil liability for acts taken in their judicial capacity.  See Stump 
v. Sparkman, 435 U.S. 349, 355–57 (1978).  “A judge will not be deprived of immunity 
because the action he took was in error, was done maliciously, or was in excess of his 
authority; rather, he will be subject to liability only when he has acted in the clear 
absence of all jurisdiction.”  Id. at 356–57 (quotation marks omitted).  Onatolu failed to 
allege that Judge Mandelbaum acted in the absence of jurisdiction or otherwise was not 
protected by judicial immunity. 
Accordingly, we will summarily affirm the District Court’s judgment.  
 


Aclekunle Onatolu v. Robert Mandelbaum

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-30-2025 
In Re: Edward Bayuk 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Edward Bayuk" (2025). 2025 Decisions. 609. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/609 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
DLD-160        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1520 
___________ 
 
IN RE: EDWARD BAYUK, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the District of New Jersey 
(Related to Civ. No. 1:23-cv-21314) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
June 5, 2025 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: July 30, 2025) 
__________ 
 
OPINION* 
__________ 
PER CURIAM 
 Edward Bayuk has filed a petition for a writ of mandamus in which he requests 
relief related to litigation in the United States District Court for the District of New Jersey 
(the “District Court”).  We will deny the petition. 
 In 2021 and 2022, the United States Bankruptcy Court for the District of Nevada 
awarded costs and attorney’s fees against Bayuk to William A. Leonard, Jr., the Chapter 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
7 trustee in an adversary proceeding captioned Leonard v. Morabito, et al., Adv. No. 15-
5046.  In October 2023, Leonard filed a complaint in the District Court.  He alleged that 
Bayuk had fraudulently transferred his New Jersey property to MAXTMAX, LLC, a 
limited liability company whose sole member is Bayuk, for the stated consideration of 
$1.00.  Leonard brought claims against Bayuk and MAXTMAX under the New Jersey 
Uniform Voidable Transactions Act.  See N.J. Stat Ann. 25:2-20 et seq.  In November 
2023, the District Court Clerk entered a default against the defendants, and on the same 
day, Bayuk requested an extension of time to respond to the complaint.  Litigation related 
to Bayuk’s effort to vacate the default has been ongoing in the District Court since then.  
In his mandamus petition, Bayuk alleges that the bankruptcy judgments against him were 
fraudulently obtained.  He requests that the District Court be directed to provide him with 
an oral hearing, a jury trial, and damages.   
A writ of mandamus is a drastic remedy available only in extraordinary cases.  See 
In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005).  To obtain 
mandamus relief, a petitioner “must establish that (1) no other adequate means exist to 
attain the relief he desires, (2) the party’s right to issuance of the writ is clear and 
indisputable, and (3) the writ is appropriate under the circumstances.”  Hollingsworth v. 
Perry, 558 U.S. 183, 190 (2010) (per curiam) (cleaned up).  Here, Bayuk has not 
established his entitlement to such extraordinary relief, as he has failed to show how the 
District Court proceedings are inadequate to address his requests for a hearing, a jury 
trial, and damages.  Indeed, the District Court ruled on similar requests, and denied them 
without prejudice, in an October 2024 order.  To the extent that Bayuk seeks to challenge 
3 
 
that order, or any other order, such as the entry of a default, this mandamus proceeding 
may not be used as a substitute for an appeal, which Bayuk may bring at the appropriate 
time.  See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996) (“[A] writ of mandamus may 
not issue if a petitioner can obtain relief by appeal.”). 
Accordingly, we will deny the mandamus petition.  


In Re: Edward Bayuk

Brian Trematore Plumbing & Heating Co Inc v. Sheet Metal Workers Local Union 25 Smart

USDC for the District Court of the Virgin Island

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-1-2025 
USA v. Jorge Romero-Amaro 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Jorge Romero-Amaro" (2025). 2025 Decisions. 623. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/623 
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the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
_________________ 
 
No. 23-2311 
_________________ 
 
UNITED STATES OF AMERICA  
 
v.  
 
JORGE ROMERO-AMARO,  
Appellant 
________________ 
 
On Appeal from the District Court  
of the Virgin Islands 
(D.C. No. 3:20-cr-00049-001) 
District Judge: Honorable Robert A. Molloy 
________________ 
 
Argued May 1, 2025 
 
Before: RESTREPO, FREEMAN, and McKEE, Circuit Judges 
 
(Filed: August 1, 2025) 
 
 
Francisco J. Adams Quesada [ARGUED] 
31 Eugene Street 
Guaynabo, PR 00966 
Counsel for Appellant  
 
Adam Sleeper    [ARGUED] 
Office of United States Attorney 
5500 Veterans Drive 
United States Courthouse, Suite 260 
St. Thomas, VI 00802 
Counsel for Appellee 
 
2 
______________ 
 
OPINION* 
_______________ 
 
McKEE, Circuit Judge. 
Jorge Romero-Amaro appeals his conviction for failure to heave to a vessel in 
violation of 18 U.S.C. § 2237(a)(1).1 Because we agree that the evidence was insufficient 
to support a guilty verdict, we will vacate Romero-Amaro’s conviction and remand for 
entry of a judgment of acquittal.2 
I. 
Romero-Amaro moved for a judgment of acquittal pursuant to Federal Rule of 
Criminal Procedure 29 at the close of the government’s case-in-chief, and renewed his 
motion at the close of all evidence. On both occasions, the District Court took the motion 
“under advisement.”3 Thereafter, the jury convicted Romero-Amaro of failure to heave to 
a vessel. Four months later, the District Court sentenced him to twelve months’ 
incarceration and no supervised release. 
 
 
 
* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not 
constitute binding precedent. 
1 “[T]he term ‘heave to’ means to cause a vessel to slow, come to a stop, or adjust its 
course or speed to account for the weather conditions and sea state to facilitate a law 
enforcement boarding.” 18 U.S.C. § 2237(e)(2). 
2 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 
3 JA 739, 812. 
 
3 
II. 
“On appeal from the grant or denial of a motion for judgment of acquittal, this 
Court exercises plenary review and independently applies the same standard as the 
district court.”4 In ruling on a motion for judgment of acquittal, pursuant to Federal Rule 
of Criminal Procedure 29, “a district court must ‘review the record in the light most 
favorable to the prosecution to determine whether any rational trier of fact could have 
found proof of guilt beyond a reasonable doubt based on the available evidence.’”5 
Because Romero-Amaro moved for judgment of acquittal at the close of the 
government’s case-in-chief and the District Court reserved decision, we must confine our 
review to the evidence presented by the government when the motion was made.6 
 
4 United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). The government contends 
that we should apply plain error review because defense counsel “forfeited” this claim by 
mistakenly informing the District Court at sentencing that it had ruled upon the Rule 29 
motion when in fact it had taken the motion under advisement. Answering Br. 12. While 
the District Court never explicitly denied the motion, it implicitly did so by scheduling a 
sentencing hearing. “A defendant must move for a judgment of acquittal at the conclusion 
of the evidence to properly preserve for appeal issues regarding the sufficiency of the 
evidence,” which is exactly what Romero-Amaro did. United States v. Wolfe, 245 F.3d 
257, 261 (3d Cir. 2001). Thus, Romero-Amaro did not forfeit this claim.  
5 United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting Wolfe, 245 F.3d at 
262). 
6 Fed. R. Crim. P. 29(b) (“If the court reserves decision, it must decide the motion on the 
basis of the evidence at the time the ruling was reserved.”); see also United States v. 
Richardson, 658 F.3d 333, 337 (3d Cir. 2011); United States v. Tyson, 653 F.3d 192, 199 
(3d Cir. 2011); United States v. Boria, 592 F.3d 476, 480 n.7 (3d Cir. 2010); Brodie, 403 
F.3d at 133. We cannot ignore Rule 29 and our precedent despite both parties’ mistaken 
belief that we may review all evidence presented at trial, including evidence introduced 
after the government’s case-in-chief. See Haybarger v. Lawrence Cnty. Adult Prob. & 
Parole, 667 F.3d 408, 413 n.3 (3d Cir. 2012) (“[W]e ‘retain[ ] the independent power to 
identify and apply the proper construction of governing law.’” (quoting Kamen v. Kemper 
Fin. Servs., Inc., 500 U.S. 90, 99 (1991)); Jefferson v. Sewon Am., Inc., 891 F.3d 911, 
 
4 
A conviction for failure to heave to requires proof beyond a reasonable doubt that 
“the master, operator, or person in charge of a vessel of the United States, or a vessel 
subject to the jurisdiction of the United States, . . . knowingly fail[ed] to obey an order by 
an authorized Federal law enforcement officer to heave to that vessel.”7 Romero-Amaro 
contends there was insufficient evidence for a rational juror to conclude that he was “the 
master, operator, or person in charge” of the boat at the time it was stopped. We agree.  
During its case-in-chief, the government only introduced evidence that Romero-
Amaro owned the boat in question and that he was one of five individuals present when 
Customs and Border Patrol agents intercepted it. None of the witnesses identified the 
driver of the boat.8 “[T]he [g]overnment does not contend that an owner is necessarily the 
operator, master, or person in charge.”9 Rather, it argues that “ownership is relevant 
 
923 (11th Cir. 2018) (“[P]arties cannot waive the application of the correct law or 
stipulate to an incorrect legal test.”). 
7 18 U.S.C. § 2237(a)(1).  
8 A single witness provided a description of the driver as a “tall slender man.” SA 152. 
But there was no evidence presented from which the jury could draw the conclusion that 
Romero-Amaro was the “tall slender man.”  
9 Answering Br. 15. We agree. In the shipping context, Congress has defined “master” as 
“the individual having command of a vessel” and “owner” as “the person to whom the 
vessel belongs.” 46 U.S.C. § 10101(1)–(2). Moreover, Congress has distinguished 
between the terms “master,” “operator,” “person in charge,” and “owner,” in several 
statutes. See 46 U.S.C. § 2111(d) (stating that in providing overtime payment to civilian 
officers and employees of the Coast Guard, “[t]he owner, charterer, managing operator, 
agent, master, or individual in charge of the vessel shall pay the amount of the overtime 
pay”); 46 U.S.C § 70502(b) (providing that a “vessel of the United States” is “a vessel 
owned . . . by an individual who is a citizen of the United States . . . unless . . . a claim of 
nationality or registry for the vessel is made by the master or individual in charge at the 
time of the enforcement action”). Based on the “well known canon of statutory 
construction that courts should construe statutory language to avoid interpretations that 
would render any phrase superfluous,” we should not conflate these terms. United States 
v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005), as amended (Feb. 15, 2005). 
 
5 
because . . . it is one of several evidentiary bases that, when considered together, permit a 
commonsense inference that the defendant was the person in charge of the vessel.”10 
However, the only evidence other than ownership is that Romero-Amaro was on the boat 
along with four other people—two at the helm and three sitting in the back—when it 
failed to stop.11 The government’s witnesses could not even determine whether Romero-
Amaro was one of the two people at the helm. This meagre evidence is insufficient for a 
rational juror to convict Romero-Amaro of failure to heave to. 
III. 
For the above reasons, we will vacate the District Court’s judgment and remand 
for entry of a judgment of acquittal. 
 
10 Answering Br. 15. 
11 After the government rested, defense counsel presented evidence that four of the five 
people on the boat were friends who live on Culebra. And that everyone living on 
Culebra “ha[s] knowledge of ships” and “ha[s] a captain’s license.” JA 760–61. 
Specifically, both Romero-Amaro and one of his co-defendants had captain’s licenses. 
Even if we could consider this additional evidence, we would still find it insufficient to 
convince a rational juror of Romero-Amaro’s guilt beyond a reasonable doubt. 


USA v. Jorge Romero-Amaro

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-7-2025 
James Jones v. Harry 
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"James Jones v. Harry" (2025). 2025 Decisions. 633. 
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BLD-186        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1387 
___________ 
 
JAMES JONES, 
   Appellant 
 
v. 
 
DR. HARRY, COMMISSIONER, SECRETARY, PA DOC;  
J. TERRA, SUPERINTENDENT; KERI MOORE, CHIEF GRIEVANCE OFFICER; 
C.E.R.T., CORRECTIONAL OFFICERS 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2:24-cv-05692) 
District Judge:  Honorable Mia R. Perez 
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
July 24, 2025 
 
Before:  SHWARTZ, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: August 7, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
 Inmate James Jones appeals pro se the District Court’s order dismissing his 
complaint.  We will summarily affirm.  
I. 
On the morning of August 14, 2024, at the State Correctional Institution in 
Phoenix, Pennsylvania, Correctional Emergency Response Team (“CERT”) officers 
visited Jones in his housing cell, subjected him to a strip search, and ordered him to carry 
his mattress to the lower level for screening.  While he transported his mattress, the 
officers searched his living quarters.  Shortly after returning to his cell, Jones discovered 
that the CERT officers had removed two cases of his legal documents and discarded them 
in the housing unit’s trash bin, which he could see from his cell door.  Jones called out to 
officers on the unit floor and asked them to retrieve his legal materials from the garbage, 
but they refused.  Jones requested assistance from his Unit Manager, numerous 
corrections officers, and members of the cleaning crew—all refused to retrieve his 
documents from the bin.   
Jones initiated this action against Department of Corrections’ Commissioner Dr. 
Harry, Superintendent Terra, CERT officers, Chief Grievance Officer Kerri Moore, and 
anyone else that may have been involved, referring to them as “Defendants et al.”  Jones 
sued the defendants in their official and individual capacities, alleged violations of his 
First, Fourth, Sixth, Eighth, and Fourteenth Amendment rights, and brought a claim of 
negligence against Terra.   
The District Court screened Jones’ complaint pursuant to 28 U.S.C. § 1915(e)(2), 
dismissed it with prejudice in part and without prejudice in part, and granted Jones leave 
 
3 
 
to amend his complaint within thirty days.  In its subsequent order denying Jones’ motion 
for reconsideration, the District Court reiterated that he could file an amended complaint 
within thirty days or proceed with his original filing, but that if Jones opted to stand on 
his original complaint, it would “issue a final order dismissing the case.”  Jones filed a 
notice of intent to stand on his original complaint.  The District Court therefore dismissed 
all of Jones’ federal claims with prejudice and dismissed his state law claim without 
prejudice, for lack of subject matter jurisdiction.  Jones appealed.1   
II. 
We agree with the District Court’s analysis.  As an initial matter, the District Court 
properly concluded that the Eleventh Amendment barred Jones’ official capacity claims 
against all defendants, who are all state officials, for monetary damages.  See Downey v. 
Pa. Dep’t of Corr., 968 F.3d 299, 309–10 (3d Cir. 2020).  The District Court’s dismissal 
of Jones’ individual capacity claims against Moore was also proper, as a prisoner does 
not have a free-standing right to an effective grievance process, and an officer’s 
 
1 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise plenary 
review over the District Court’s order dismissing Jones’ complaint under 28 U.S.C. § 
1915(e)(2)(B).  See Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020).  Dismissals for 
failure to state a claim under § 1915(e)(2)(B) are governed by the same standard 
applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).  See 
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).  This standard requires the 
Court to determine whether the complaint contains “sufficient factual matter, accepted as 
true, to state a claim to relief that is plausible on its face.”  Ashcroft v. Iqbal, 556 U.S. 
662, 678 (2009) (quotation marks omitted).  Summary action is appropriate if there is no 
substantial question presented in the appeal.  See 3d Cir. L.A.R. 27.4.   
 
 
4 
 
mishandling of grievances does not itself violate a constitutional right.  See Massey v. 
Helman, 259 F.3d 641, 647 (7th Cir. 2001).    
As for Jones’ individual capacity claims against Harry and Terra, we agree that 
Jones failed to plead their liability as supervisors.  To do so, Jones had to “plead that each 
Government-official defendant, through the official’s own individual actions, has 
violated the Constitution.”  Ashcroft v. Iqbal, 556 U.S. 662 (2009) Id. at 676.  Jones 
vaguely claimed that Harry “unleashed the CERT on all prisoners,” but he failed to 
identify an unconstitutional policy or articulate any direct actions she or Terra took 
related to the incident on August 14, 2024.2  And, while the District Court provided him 
the opportunity to amend these claims, he declined to do so. 
The District Court also properly dismissed Jones’ Fourth Amendment claims.  
Regarding the CERT officers’ search of his cell, “prisoners do not have a Fourth 
Amendment right to privacy in their cells.”  Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 
2001).  Thus, it was appropriate for the District Court to dismiss this claim without 
granting him leave to amend, as amendment would have been futile.  See Grayson v. 
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).   
As for Jones’ strip search claim, an inmate’s Fourth Amendment rights in this 
regard are “very narrow.”  Parkell v. Danberg, 833 F.3d 313, 325–26 (3d Cir. 2016).  The 
District Court properly concluded that Jones’ original complaint failed to establish the 
 
2 In his filing on appeal, Jones referenced a pattern of alleged abuses that included denial 
of medical services and assaults on inmates by staff, but he failed to demonstrate that 
these alleged practices had any connection to the claims in his complaint.   
 
5 
 
search was conducted for an illegitimate purpose.  Again, the District Court granted him 
the opportunity to elaborate via amendment, but Jones elected to stand on his original 
complaint.  There was no error in converting the dismissal to with prejudice.  Cf. In re 
Westinghouse Sec. Litig., 90 F.3d 696, 703–04 (3d Cir. 1996). 
 We also agree with the District Court’s dismissal of Jones’ claims related to the 
destruction of his legal documents.  Although Jones couched this claim as a Sixth 
Amendment violation, the District Court properly treated it as an “access-to-courts” claim 
under the First and Fourteenth Amendment.  See United States v. Ward, 448 U.S. 242, 
248 (1980) (noting that the Sixth Amendment is limited to criminal proceedings).  An 
inmate raising an access-to-courts claim must allege that he lost a chance to pursue 
a nonfrivolous or arguable claim challenging his conviction or conditions or 
confinement.  See Monroe v. Beard, 536 F.3d 198, 205–06 (3d Cir. 2008) (per 
curiam).  Jones did not plead a claim under those standards.  Jones claimed that CERT 
officers disposed of legal documents he needed for a pending Post Conviction Relief Act 
(“PCRA”) petition or appeal and for the District Attorney’s Conviction Integrity Unit 
(“CIU”).3  But the District Court reviewed the public docket and found no pending PCRA 
proceeding.4  The Court provided Jones the opportunity to amend his pleading and 
 
3 In both his motion for reconsideration and his filing on appeal, Jones clarified that he 
had withdrawn his PCRA petition because he planned on pursuing an application with the 
CIU.  However, he failed to show he lost an arguable claim.  See Christopher v. Harbury, 
536 U.S. 403, 415 (2002).  
 
4 A district court may take judicial notice of matters of public record, including judicial 
proceedings.  See Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).  
 
6 
 
specify whether he had an active PCRA petition, but he opted to stand on his original 
complaint.  Therefore, the District Court’s dismissal was proper.   
We also agree that Jones failed to establish an Eighth Amendment violation 
because the deprivation of his legal materials does not constitute cruel and unusual 
punishment.  See Wilson v. Seiter, 501 U.S. 294, 298 (1991) (explaining that only 
deprivation of life’s “necessities” is sufficient to establish an Eighth Amendment 
violation).   
Finally, given Jones’ failure to state a claim under federal law, we find that the 
District Court acted within its discretion in declining to exercise jurisdiction over his 
supplemental state-law claim.  See Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 567 (3d 
Cir. 2017) (“A court may [decline to exercise supplemental jurisdiction] under 28 U.S.C. 
§ 1367(c)(3) when it dismisses all claims over which it has original jurisdiction.”).   
Accordingly, we will summarily affirm the District Court’s judgment.   
 


James Jones v. Harry

Marcus Boone v. City of Elizabeth

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-8-2025 
USA v. Elijah Hakim 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Elijah Hakim" (2025). 2025 Decisions. 637. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/637 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 23-1713 
____________ 
 
UNITED STATES OF AMERICA  
 
v. 
 
ELIJAH HAKIM, 
        Appellant 
____________ 
 
On Appeal from the District Court of the Virgin Islands 
(No. 3:21-cr-00026-001) 
District Judge: Honorable Robert A. Molloy 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
on May 1, 2025 
 
Before: RESTREPO, FREEMAN, and McKEE, Circuit Judges 
 
(Opinion filed: August 8, 2025) 
 
_______________ 
 
OPINION* 
_______________
  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
FREEMAN, Circuit Judge. 
 
Elijah Hakim appeals his conviction and sentence for two drug offenses.  For the 
following reasons, we will affirm the District Court’s judgment. 
I 
In April 2021, Customs and Border Protection (“CBP”) intercepted a package 
containing fentanyl (“Package No. 1”).  It was sent from a post office in Atlanta, Georgia, 
to an address in Saint Thomas, U.S. Virgin Islands.  Law enforcement obtained 
surveillance video of the woman who mailed Package No. 1.  The woman resembled 
Desiree Lettsome—Hakim’s live-in girlfriend.  When the woman mailed Package No. 1, 
she also mailed a second package that listed Lettsome as the sender.  And someone using 
an IP address associated with Lettsome later tracked Package No. 1. 
In May 2021, CBP intercepted a second package containing fentanyl (“Package 
No. 2”).  Video showed Package No. 2 was mailed by a man resembling Hakim at the 
Akers Mill Post Office in Atlanta.  Law enforcement found three of Hakim’s fingerprints 
on the underside of the packing tape. 
Law enforcement obtained a warrant for the location data of a cell phone used to 
track packages sent to the Saint Thomas address where the woman sent Package No. 1.  
They learned that the cell phone was near the Akers Mill Post Office when the man 
resembling Hakim mailed Package No. 2.  They also learned that, one month later, the 
cell phone travelled from Atlanta to Orlando, Florida, where it stopped in the vicinity of a 
 
3 
hotel where Hakim was a registered guest.  On the date when Hakim checked out of the 
hotel, the cell phone travelled back to the vicinity of Hakim’s apartment in Atlanta. 
In September 2021, law enforcement arrested Hakim at his apartment, where 
Lettsome and an infant were present.  A search of the apartment recovered items 
consistent with the packaging of fentanyl; a handbag resembling the one carried by the 
woman who mailed Package No. 1; sneakers and a shirt resembling those worn by the 
man who mailed Package No. 2; and the cell phone that had travelled from Atlanta to 
Orlando and back and that had been used to track Package No. 1. 
A grand jury returned a two-count superseding indictment against Hakim.  Count 
1 charged an April to May 2021 conspiracy to possess fentanyl with intent to distribute, 
in violation of 21 U.S.C. §§ 841(a)(l), (b)(l)(B)(vi) and 846.  Count 2 charged a May 
2021 possession of fentanyl with intent to distribute, in violation of 21 U.S.C. 
§§ 841(a)(l), (b)(l)(C). 
Before trial, Hakim filed motions to exclude the post office videos and testimony 
related to the intercepted packages.  When the government did not respond to the 
motions, the District Court granted the motions as unopposed.  In its order, it noted that 
the government had not provided notice of its intent to introduce evidence of prior bad 
acts under Federal Rule of Evidence 404(b).  The District Court later denied the 
government’s motion to reconsider its order, but it clarified that the order only precluded 
the government from introducing prior-bad-act evidence under Rule 404(b)—it did not 
apply to evidence intrinsic to the charged offenses.  At trial, the District Court admitted 
the post office videos showing the individuals who mailed Package Nos. 1 and 2. 
 
4 
At the close of the government’s case, Hakim moved for judgment of acquittal on 
both counts and the District Court reserved judgment on the motion.  After a jury 
convicted Hakim, he renewed his motion for judgment of acquittal, which the District 
Court denied.  Although the jury found Hakim guilty on Count 1, it found the 
government did not prove beyond a reasonable doubt that the substance containing 
fentanyl weighed 40 grams or more.  Notwithstanding that verdict (and over Hakim’s 
objection), the District Court found that a preponderance of the evidence supported a 
drug quantity of 43.26 grams.  It used that drug quantity to calculate a Sentencing 
Guidelines range of 78 to 97 months’ imprisonment, and it sentenced Hakim to 85 
months.  Hakim timely appealed. 
II1 
Hakim raises four issues in his appeal.  First, he argues that the District Court 
erred in denying his motion for judgment of acquittal because there was insufficient 
evidence to convict him on either count of the indictment.  Exercising plenary review, 
United States v. Kousisis, 82 F.4th 230, 236 (3d Cir. 2023), we disagree. 
Viewing the record in the light most favorable to the prosecution, id., a rational 
jury could find that Lettsome mailed and tracked Package No. 1, Hakim mailed Package 
No. 2 (the one on which his fingerprints were found), Hakim tracked packages sent to the 
address where Lettsome sent Package No. 1, and the couple worked together to pack and 
 
1 The District Court had jurisdiction under 48 U.S.C. § 1612(a) and 18 U.S.C. § 3231.  
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 
 
5 
ship fentanyl from their shared apartment.  These facts support a guilty verdict on both 
counts.  See United States v. Zayas, 32 F.4th 211, 221 (3d Cir. 2022) (listing the elements 
of a conspiracy offense). 
Second, Hakim argues the District Court erred in admitting the post office videos 
after first ordering them excluded.  Relatedly, he argues that the government forfeited any 
right to present the videos by failing to respond to his pretrial motions.2  We review a 
district court’s evidentiary ruling for abuse of discretion.  United States v. Barkers-
Woode, 136 F.4th 496, 502 (3d Cir. 2025).  When a district court sets aside a forfeiture, 
we review that decision for abuse of discretion as well.  United States v. Dowdell, 70 
F.4th 134, 140 (3d Cir. 2023).   
We discern no abuse of discretion here.  The District Court appropriately 
exercised its discretion when it clarified that its pretrial ruling applied only to Rule 404(b) 
evidence.  See In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d 
Cir. 2009).  And its decision to admit the videos as intrinsic evidence of the charged 
offenses was consistent with that ruling and otherwise sound. 
Third, Hakim argues the District Court’s jury instructions regarding Count 1 
constructively amended the indictment by not naming “D.L.” (i.e., Lettsome) as a co-
 
2 Despite his argument about a government “waiver,” Hakim advances a forfeiture 
argument.  He contends that the government failed to raise timely arguments before the 
District Court, not that it intentionally relinquished any known right.  See Barna v. Bd. of 
Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) (explaining that 
“[f]orfeiture is the failure to make the timely assertion of a right, an example of which is 
an inadvertent failure to raise an argument,” while “[w]aiver . . . is the intentional 
relinquishment or abandonment of a known right” (citation modified)). 
 
6 
conspirator.  Because he did not object in the District Court, we review this issue for 
plain error.  See United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010).  We 
discern no error, plain or otherwise.  
Count 1 of the indictment charged Hakim with conspiring with “others known and 
unknown, including D.L.”  JA Vol. II at 17.  To convict, the government needed to prove 
that Hakim conspired with one of the persons listed in the indictment.  United States v. 
Nolan, 718 F.2d 589, 595 (3d Cir. 1983).  That is, it needed to prove that Hakim 
conspired with one other person, whether that person was known or unknown.  And the 
jury instructions did not need to identify that other person by name.  Therefore, the jury 
instructions did not modify any essential term of the conspiracy charge.  See Vosburgh, 
602 F.3d at 532. 
 Finally, Hakim preserves an argument that the District Court erred in considering 
acquitted conduct (a drug quantity of 43.25 grams) at sentencing.  He recognizes that his 
argument is foreclosed by longstanding precedent permitting a sentencing court to 
consider the “conduct underlying the acquitted charge, so long as that conduct has been 
proved by a preponderance of the evidence.”  United States v. Watts, 519 U.S. 148, 157 
(1997).  That precedent has been subject to criticism, see, e.g., United States v. Brown, 
892 F.3d 385, 408–09 (D.C. Cir. 2018) (Millett, J., concurring), but it remains the law.  
Thus, his challenge fails. 
* * * 
For the foregoing reasons, we will affirm the District Court’s judgment. 


USA v. Elijah Hakim

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-12-2025 
Vamsidhar Vurimindi v. Erin Morgan 
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NOT PRECEDENTIAL 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
 
________________ 
 
No. 23-1886 
________________ 
 
 
VAMSIDHAR REDDY VURIMINDI, 
   Appellant 
 
v. 
 
ERIN MORGAN, TRAVIS COUNTY TEXAS PROBATION OFFICER; 
ATTORNEY GENERAL PENNSYLVANIA 
________________ 
 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania 
(D.C. No. 2:23-cv-00882) 
District Judge:  Honorable Kai N. Scott 
________________ 
 
Submitted under Third Circuit L.A.R. 34.1(a) 
on March 7, 2025 
 
Before: MATEY, FREEMAN and ROTH, Circuit Judges 
 
(Opinion filed: August 12, 2025) 
 
________________ 
 
OPINION* 
________________ 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
ROTH, Circuit Judge 
 
While Vamsidhar Vurimindi’s second Pennsylvania Post Conviction Relief Act 
(PCRA) petition was pending, he petitioned pro se for a writ of habeas corpus under 28 
U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania.  
The District Court dismissed his habeas petition for failure to exhaust available state 
remedies, and Vurimindi appealed.  While this appeal was pending, Vurimindi completed 
his state supervision and became ineligible for relief under the PCRA.  The PCRA court 
dismissed his PCRA petition.  Since Vurimindi is now ineligible for relief under the 
PCRA, his state remedies are exhausted.  We will vacate the District Court’s order of 
dismissal and remand this matter for further proceedings on the habeas petition.  
I. Background1 
 
In February 2014, after a one-day bench trial, Vurimindi was convicted of two 
counts of stalking and one count of disorderly conduct.  In April 2014, the court 
sentenced Vurimindi to an aggregate term of two-and-a-half to five years in prison 
followed by five years’ probation.  On April 25, 2014, Vurimindi filed pro se a motion 
for reconsideration of sentence, which was received on May 1, 2014.  The court mis-
docketed the motion as “pro se correspondence” and took no action on it.2  The next day, 
Vurimindi also filed a pro se PCRA petition.  Sometime in 2017, while preparing for a 
PCRA hearing, the Commonwealth discovered Vurimindi’s mis-docketed motion for 
reconsideration from 2014.  In June 2017, the PCRA court denied by operation of law 
 
1 Because we write for the parties, we recite only those facts necessary to our disposition.  
2 Appx 1432, 1470.  
3 
 
Vurimindi’s post-sentence motions and reinstated his direct appeal rights.  Vurimindi 
filed a notice of appeal.  On September 10, 2019, after the Pennsylvania Superior Court 
affirmed the judgment of sentence and the state supreme court denied his petition for 
appeal, Vurimindi filed another pro se PCRA petition. 
While Vurimindi’s second PCRA petition was pending, he filed a federal habeas 
corpus petition on March 4, 2023.  Two months later, the District Court adopted a 
magistrate judge’s report and recommendation that the petition be dismissed without 
prejudice because Vurimindi had not exhausted the claims in his state post-conviction 
proceedings.  Vurimindi filed a notice of appeal, which we construed as an application 
for a certificate of appealability (COA).  On August 4, 2023, we denied his COA 
application, agreeing with the District Court that he had unexhausted claims in state 
court.  However, on September 5, 2023, upon a motion by Vurimindi, we vacated our 
order denying him a COA and submitted his COA application to a motions panel for 
review.  Days earlier, on August 30, 2023, Vurimindi’s state supervision ended—thus 
4 
 
rendering him ineligible for PCRA relief3—and as a result, in September 2023, his PCRA 
petition was dismissed.4  
Following the dismissal of Vurimindi’s PCRA petition, we granted him a COA 
with respect to three issues: “whether (1) the claims that were pending in PCRA court at 
the time [Vurimindi] filed his [federal habeas corpus] petition . . . are no longer barred 
from federal review in light of the PCRA court’s . . . order dismissing his petition as moot 
because Pennsylvania’s custody requirement deprives him of ‘available’ state remedies 
under § 2254(b)[;] . . . (2) the exhaustion requirement can be excused or satisfied based 
on developments in state court that occurred after the District Court’s final order; and (3) 
the petition states a valid claim of the denial of a constitutional right.”5 
II. Jurisdiction and Standard of Review 
The District Court had jurisdiction under § 2254.  We have jurisdiction under 28 
U.S.C. §§ 1291 and 2253.6  Our review is plenary where, as here, “the District Court 
 
3 “To be eligible for relief under the [PCRA], the petitioner must” be “currently serving a 
sentence of imprisonment, probation or parole for the crime[.]”  42 Pa.C.S. 
§ 9543(a)(1)(i).  The Pennsylvania Supreme Court “ha[s] construed th[e] provision to 
preclude PCRA relief where the petitioner is no longer serving a sentence for the crime at 
the time the PCRA court renders a decision.”  Commonwealth v. Smith, 17 A.3d 873, 904 
(Pa. 2011) (citing Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997)).   
4 Vurimindi appealed the dismissal of his PCRA petition, which the Pennsylvania 
Superior Court affirmed in February 2025.  See Commonwealth v. Vurimindi, No. 2272 
EDA 2023, 2025 WL 408698, at *1 (Pa. Super. Ct. Feb. 5, 2025).  He subsequently filed 
a petition for allowance of appeal, which the Pennsylvania Supreme Court denied.  See 
Commonwealth v. Vurimindi, No. 73 EAL 2025, 2025 WL 1822802, at *1 (Pa. July 25, 
2025).  
5 Appx 1352–53 (emphasis added) (citations omitted).  
6 Leyva v. Williams, 504 F.3d 357, 363 (3d Cir. 2007). 
5 
 
dismissed the petition without conducting an evidentiary hearing.”7  We likewise exercise 
plenary review over the District Court’s determination regarding exhaustion.8   
III. Discussion 
As codified in § 2254, the exhaustion doctrine requires a petitioner for a writ of 
habeas corpus to first “exhaust[] the remedies available in the courts of the State.”  To 
exhaust, a petitioner “must ‘fairly present’ all federal claims to the highest state court 
before bringing them in federal court.”9  But where there is “no available state corrective 
process,” exhaustion is excused.10  Such is the case for Vurimindi.   
To be eligible for PCRA relief, a petitioner must be “currently serving a sentence 
of imprisonment, probation or parole.”11  Following the plain language of the statute, 
Pennsylvania courts apply a bright-line eligibility rule denying PCRA relief when a 
petitioner is no longer serving a sentence.12  Because Vurimindi has completed his 
supervision, PCRA relief is no longer available to him.13  As we held in Leyva v. 
Williams, noncompliance with Pennsylvania’s custody requirement deprives a petitioner 
 
7 Morton v. Dir. V.I. Bureau of Corr., 110 F.4th 595, 600 (3d Cir. 2024) (citing 
McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009)); see Levya, 504 F.3d at 363. 
8 Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007).  
9 Leyva, 504 F.3d at 365 (quoting Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d 
Cir. 2002)).  
10 Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), as amended, (Jan. 16, 1998); 
see also § 2254(b)(1)(B)(i). 
11 § 9543(a)(1)(i) (emphasis added). 
12 See Ahlborn, 699 A.2d at 720.  In contrast to the PCRA’s current-sentence 
requirement, federal courts “look[] to the date that the habeas petition was filed” to 
determine whether a petitioner is “in custody” to be eligible for relief.  See Barry v. 
Bergen Cnty. Prob. Dep’t, 128 F.3d 152, 159 (3d Cir. 1997).   
13 See Vurimindi, 2025 WL 408698, at *4–5.   
6 
 
of “available State corrective process.”14  Pennsylvania law therefore “clearly foreclose[s] 
state court review of [the] unexhausted claims.”15  Thus, we find Vurimindi’s PCRA 
claims to be exhausted.16  
The fact that the exhaustion occurred during the pendency of this appeal does not 
preclude federal court review.  In Sharpe v. Buchanan,17 the Supreme Court remanded a 
habeas corpus petition to a district court for consideration on the merits where the 
petitioner exhausted his state court remedies after the U.S. Court of Appeals for the Sixth 
Circuit affirmed the dismissal of his petition for failure to exhaust.18  Additionally, in past 
decisions, we have reviewed district court denials of petitions for a writ of habeas corpus 
where exhaustion of state remedies occurred during the appeal.19  Although Vurimindi’s 
supervision ended and the PCRA court dismissed his petition after the District Court’s 
final order, because Vurimindi is no longer “currently serving a sentence” as required by 
the PCRA,20 the “absence of available State corrective process” alone is sufficient for 
exhaustion, regardless of when it occurs or the reason for their unavailability.21   
 
14 Levya, 504 F.3d at 368–69 (quoting § 2254(b)).  
15 Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993).  
16 Because we find that Vurimindi’s PCRA claims are exhausted due to a lack of state 
corrective process under § 2254(b)(1)(B)(i), we need not consider the Commonwealth’s 
arguments relating to alternative grounds for exhaustion under § 2254(b)(1)(B)(ii).  
17 317 U.S. 238 (1942) (per curiam).  
18 Id. at 238–39.  Although the Court decided Sharpe prior to the codification of § 2254’s 
exhaustion requirement, “[t]he exhaustion doctrine existed long before its codification by 
Congress in 1948.”  See Rose v. Lundy, 455 U.S. 509, 515 (1982).  
19 See Carrascosa v. McGuire, 520 F.3d 249, 255 & n.13 (3d Cir. 2008); cf. Carpenter v. 
Vaughn, 296 F.3d 138, 147 (3d Cir. 2002).  
20 See § 9543(a)(1)(i). 
21 § 2254(b)(1)(B)(i); Leyva, 504 F.3d at 368–69; Woodford v. Ngo, 548 U.S. 81, 92–93 
(2006). 
7 
 
Assessing whether Vurimindi’s petition states a valid claim of a denial of a 
constitutional right requires a review of the state court record, which was not filed with 
the District Court.  We will therefore remand this matter to the District Court to review 
the merits of Vurimindi’s habeas petition in the first instance.22    
IV. Conclusion 
Because we find that Vurimindi has now exhausted state court remedies to allow 
federal review, we will vacate the District Court’s dismissal and remand for further 
proceedings on the habeas petition, consistent with this opinion.  
 
   
 
22 See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (“[W]hen we 
reverse on a threshold question, we typically remand for resolution of any claims the 
lower courts’ error prevented them from addressing.”).  Of course, the court need not 
reach the merits if, after appropriate fact-finding, it concludes that Vurimindi’s claims are 
procedurally defaulted and that no exception to the procedural-default rule applies.  See 
Leyva, 504 F.3d at 365 (“Even when a petitioner properly exhausts a claim . . . a federal 
court may not review it on the merits if a state court’s decision rests on a violation of a 
state procedural rule.”); id. at 368 (“[T]he absence of state corrective process is generally 
an excuse to the exhaustion requirement, not to the application of procedural default.  We 
have therefore applied procedural default when the reason for the absence of state process 
is a petitioner’s failure to comply with state procedural rules.” (citations omitted)).  If the 
court concludes that the claims are not defaulted (or that Vurimindi has shown cause and 
prejudice to excuse any default), the court should consider their merits.  See Evans v. 
Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 657 (3d Cir. 2011). 


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