Villanova University School of Law: Digital Repository

English

Consol Pennsylvania Coal Co v. Randall McMillin

Corey Fallen v. Thomas McEnroe

Information literacy is crucial to satisfying a lawyer’s duty of technology competence by virtue of its inherent role in conducting legal research—a skill now recognized by the National Conference of Bar Examiners (NCBE) as a priority as it prepares for the NextGen Bar Exam. In light of the rapid rise in the number of attorneys facing disciplinary issues across the country, it is the NCBE’s responsibility to draw upon its rich history to address information literacy as a technological competency on the Multistate Professional Responsibility Exam to protect the public from newly licensed lawyers’ incompetent use of generative artificial intelligence

Emerson, Amy A.

Assessing Information Literacy in the Age of Generative AI: A Call to the National Conference of Bar Examiners

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-4-2025 
Hal Harris v. Leticia Couttien 
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Recommended Citation 
"Hal Harris v. Leticia Couttien" (2025). 2025 Decisions. 181. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-1854 
__________ 
 
HAL H. HARRIS; 
TERRENCE A. COLBERT, 
                             Appellants 
 
v. 
 
LETICIA R. COUTTIEN 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 3:23-cv-00744) 
District Judge:  Honorable Malachy E. Mannion 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
February 26, 2025 
Before:  RESTREPO, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: March 4, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 Pro se Appellants Hal H. Harris and Terrence A. Colbert appeal the District 
Court’s order affirming the Bankruptcy Court’s order denying their motion to extend the 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
time to file a notice of appeal of the Bankruptcy Court’s March 1, 2023 order.  For the 
reasons that follow, we will affirm the District Court’s order. 
 The complicated personal and litigation history between Appellants and the 
bankruptcy debtor, Leticia Couttien, is well-known to the parties and need not be 
discussed at length.  Briefly, Couttien filed a bankruptcy petition, and Appellants filed an 
adversary proceeding against her.  Couttien and Appellants resolved the adversary 
proceeding with a stipulation which addressed Appellants’ claims against her.  Couttien 
was granted a discharge by the Bankruptcy Court, and the adversary proceeding was 
closed in 2018.  In January 2022, she filed a motion to reopen the bankruptcy 
proceedings and requested injunctive relief on the grounds that Appellants had violated 
the discharge order by continuing litigation against her in the state courts.  After three 
days of hearings, the Bankruptcy Court determined that Appellants had violated the 
discharge injunction and enjoined them from trying to collect on any discharged debt.  In 
re Couttien, No. 5:14-BK-02262-HWV, 2023 WL 2314469, at *1 (Bankr. M.D. Pa. Mar. 
1, 2023).  The Bankruptcy Court’s order was entered on March 1, 2023.   
The time to file a notice of appeal expired fourteen days later on March 15, 2023.  
See Fed. R. Bankr. P. 8002(a)(1); 28 U.S.C. § 158(c)(2).  On March 20, 2023, Appellants 
filed a motion to extend the time to file a notice of appeal from the March 1 order.  After 
holding a hearing, the Bankruptcy Court denied the motion.  Appellants then timely 
appealed that order to the District Court.  The District Court concluded that the 
3 
 
Bankruptcy Court did not abuse its discretion in denying the motion to extend the time.  
Appellants filed a timely notice of appeal.   
We have jurisdiction pursuant to 28 U.S.C. §§ 158(d)(1) and 1291.  We exercise 
the same standard of review over the Bankruptcy Court’s order as the District Court did.  
We review any legal determinations de novo, any factual findings for clear error, and the 
Bankruptcy Court’s exercise of discretion for an abuse thereof.  In re Am. Classic 
Voyages Co., 405 F.3d 127, 130 (3d Cir. 2005).  A court abuses its discretion when its 
decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law, or 
the improper application of law to fact.”  Ragguette v. Premier Wines & Spirits, 691 F.3d 
315, 322 (3d Cir. 2012).  A court can also abuse its discretion if no reasonable person 
would adopt its view or if we have a “definite and firm conviction that the court ... 
committed a clear error of judgment in the conclusion it reached upon a weighing of the 
relevant factors.” Id. (citation omitted).  
While Appellants spend much of their brief describing their history with Couttien 
and challenging the Bankruptcy Court’s March 1, 2023 order, that order is not before us.  
4 
 
The only issue before us is whether the Bankruptcy Court abused its discretion when it 
denied Appellants’ motion to extend the time to file their notice of appeal.1 
A bankruptcy court may extend the time to file a notice of appeal if, inter alia, the 
party shows excusable neglect.  Fed. R. Bankr. P. 8002(d)(1)(B).  The Supreme Court has 
set forth four factors to be weighed in determining whether a party has shown excusable 
neglect: “the danger of prejudice to the debtor, the length of the delay and its potential 
impact on judicial proceedings, the reason for the delay, including whether it was within 
the reasonable control of the movant, and whether the movant acted in good faith.”  
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). 
 Here, the Bankruptcy Court found the first two factors in Appellants’ favor; it 
determined that there was no prejudice to Couttien and the short length of the delay 
would not disrupt any other legal proceedings.  As for the third factor, however, the 
Bankruptcy Court concluded that the reason for the delay was within the reasonable 
 
1 In their brief, Appellants argue that the District Court erred by not applying Fed. R. Civ. 
P. 6(a) & (d).  They suggest that with the application of these rules, their notice of appeal 
was timely as to the Bankruptcy Court’s March 1, 2023 order.  Their argument is without 
merit.  Appellants assert that they had until March 20 to file the notice of appeal because 
the March 1 order was not mailed until March 3, and they were entitled to three 
additional days to file the notice of appeal.  However, a notice of appeal from an order of 
a bankruptcy court must be filed within 14 days after the order is entered.  See Fed. R. 
Bankr. P. 8002(a)(1); 28 U.S.C. § 158(c)(2).  And Fed. R. Civ. P. 6(d) allows for 
additional time to respond when service is made pursuant to Fed. R. Civ. P. 5(b)(2)(C).  
Rule 5(b)(2)(C) concerns pleadings and other papers served by mail; it does not include 
orders entered by the court.  See Lashley v. Ford Motor Co., 518 F.2d 749, 750 (5th Cir. 
1975) (per curiam); cf. Eastman v. First Data Corp., 736 F.3d 675, 677 (3d Cir. 2013) 
(per curiam). 
 
5 
 
control of Appellants because they could have monitored the docket to discover the entry 
of the order within the time to file a timely notice of appeal.  The Bankruptcy Court did 
not address the fourth factor of good faith because it determined that even if Appellants 
could conclusively prove they did not receive the March 1 order until after the deadline, 
they would still not meet the requirements for an extension of time. 
On appeal, Appellants suggest that, with the goal of preventing their appeal of its 
March 1 order, the Bankruptcy Court withheld its order until after the time to appeal had 
expired.  They speculate that the order was not mailed until the day before they received 
it.  Appellants, however, ignore a certificate of notice in which an employee of the 
Bankruptcy Court declared under penalty of perjury that the order was mailed to 
Appellants on March 3.  See ECF #150, In re Couttien, No. 5:14-BK-02262-HWV 
(Bankr. M.D. Pa. Mar. 3, 2023).  Appellants also discount the probability that any delay 
in the delivery of the order occurred after it was mailed by the Bankruptcy Court.  In fact, 
as an exhibit to a motion to grant their motion for an extension as unopposed, Appellants 
attached a letter from Harris to his local postmaster in which Harris complained of 
multiples instances of mail delayed, misdirected, or never delivered, including the 
Bankruptcy Court’s order.   
Appellants do not dispute that they could have checked the docket to ensure timely 
notice of the Bankruptcy Court’s decision.  At the April 25, 2023 hearing before the 
Bankruptcy Court, Harris admitted that he checked the docket “every now and then.”  Tr. 
4/25/2023 at 24-25.  Rather, Appellants argue that it was unreasonable for the 
6 
 
Bankruptcy Court to expect them to monitor the docket regularly for six months.  We 
agree with the Bankruptcy Court that the reason for the delay in filing the notice of 
appeal was within the reasonable control of Appellants and conclude that the Bankruptcy 
Court did not abuse its discretion in denying Appellants’ motion to extend the time to file 
a notice of appeal.   
 For the above reasons, we will affirm the District Court’s judgment.  Appellants’ 
request for costs is denied.  See Fed. R. App. P. 39(a)(2). 


Hal Harris v. Leticia Couttien

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-7-2025 
Richard Hightower v. City of Philadelphia 
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Recommended Citation 
"Richard Hightower v. City of Philadelphia" (2025). 2025 Decisions. 186. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/186 
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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. 
 
 
PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-1116 
_______________ 
RICHARD HIGHTOWER, 
 Appellant 
v. 
 
CITY OF PHILADELPHIA; SERGEANT SHANTEL  
MAJOR; CORRECTIONAL OFFICER JOHN DOES 1–10; 
MEDICAL JOHN DOES 1–10 
_______________ 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania 
(D.C. No. 2:21-cv-04075) 
District Judge: Honorable Karen S. Marston 
_______________ 
Argued: December 2, 2024 
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges 
 
(Filed: March 7, 2025) 
 
Charles L. Becker  [ARGUED] 
Colin Burke 
Ruxandra M. Laidacker 
2 
 
Michelle Paznokas 
KLINE & SPECTER 
1525 Locust Street  
19th Floor 
Philadelphia, PA 19102 
 Counsel for Appellant 
  
Craig R. Gottlieb 
Jennifer MacNaughton  [ARGUED] 
CITY OF PHILADELPHIA 
LAW DEPARTMENT 
1515 Arch Street  
Philadelphia, PA 19102 
Counsel for Appellees 
_______________ 
OPINION OF THE COURT 
_______________ 
BIBAS, Circuit Judge. 
Not every jail tragedy makes a municipality liable. Richard 
Hightower, a pretrial detainee, was brutally attacked by his 
cellmate and left paralyzed. So he sued the City of Philadelphia 
over its jail-housing policy. But cities are seldom liable for ran-
dom, one-off attacks by one inmate against another. Because 
Hightower cannot show that the city caused any constitutional 
violation, the District Court properly granted it summary judg-
ment. 
3 
 
I. HIGHTOWER’S CELLMATE ATTACKED HIM,  
LEAVING HIM PARALYZED 
Hightower was arrested and charged with burglary, theft, 
trespass, and receiving stolen property. He was held in a city 
jail pending trial. While new inmates are in intake, the jail tests, 
interviews, and medically examines them to classify them by 
security status. That process is supposed to be finished within 
three days. Then, the jail is supposed to assign the inmate to a 
permanent cell based on his classification.  
Hightower was sent to an intake cell to await transfer to the 
general jail population. While he was there, the jail classified 
him as the second-lowest security risk (out of four classes).  
Hightower’s intake cellmate was Anthony Tyler. Tyler was 
classified as the highest security risk. This was not Tyler’s first 
time behind bars. When he had been imprisoned before, he had 
screamed and kicked the walls, beaten his cellmate, fought 
other inmates, destroyed prison property, and slapped a guard. 
This time, he was arrested for aggravated and simple assault, 
attempted arson, and having a criminal instrument. Before 
joining Hightower in his cell, Tyler had been recovering from 
stab wounds in the jail’s infirmary. Under the jail’s policy, he 
should have gone from the infirmary straight to a permanent 
cell because he had already been classified and medically 
cleared. But a company that provides prison health services 
made a mistake, sending him back to an intake cell.   
Tyler arrived in Hightower’s cell angry. He started pacing 
the cell, kicking the door, and arguing with Hightower. He 
yelled at Hightower, saying he would “F” him up. App. 111–
12. Hightower lay down on his bunk and stayed quiet. About 
4 
 
twenty minutes later, Tyler had a guard turn on the TV outside 
their cell. Hightower, trying to sleep, asked the guard to turn 
down the volume. Tyler again threatened to “F [Hightower] 
up.” App. 113. Hightower responded that if Tyler was going to 
try anything, he should do it then. But the two stopped arguing, 
so Hightower lay down again and fell asleep.  
The next day, while Hightower was lying in his bunk, Tyler 
started banging on the cell door. When a guard approached, 
Tyler complained that the cell was dirty and so was Hightower. 
Tyler demanded a new cell, but the guard said he could not be 
moved right away.  
Tyler shot back: “If I can’t get out of this cell, I’m going to 
kill my cellee.” App. 170. “[H]e immediately turned around, 
ran, and pulled Mr. Hightower off the top bunk.” App. 171. 
Once Hightower was on the ground, Tyler punched and kicked 
him. The guard radioed for medics and backup. Less than a 
minute after the guard got to the cell and before her backup 
arrived, she went in and pepper-sprayed Tyler, subduing him. 
Backup arrived shortly after, handcuffing Tyler and taking 
Hightower to the hospital. Even so, Hightower was left para-
lyzed.  
Hightower sued the City of Philadelphia and the guards 
under 42 U.S.C. § 1983. The District Court granted summary 
judgment for defendants. Hightower does not appeal the 
court’s judgment for the guard but does appeal the judgment 
for the city. We review de novo, taking all facts from and draw-
ing all inferences for Hightower. Tundo v. County of Passaic, 
923 F.3d 283, 286–87 (3d Cir. 2019). 
5 
 
II. HIGHTOWER’S MONELL CLAIM FAILS 
Hightower alleges that the city violated his constitutional 
rights by housing him with a dangerous inmate. To prove that 
Monell claim, he must show both that his rights were violated 
and that the city is liable for that violation. See Schneyder v. 
Smith, 653 F.3d 313, 319 (3d Cir. 2011). The city is not vicar-
iously liable for the unconstitutional conduct of its employees. 
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, 
Hightower must show that the city’s choices were the “moving 
force” behind the constitutional violation. Id. at 694.  
Of course, Hightower has a Fourteenth Amendment right to 
“security from physical assault by fellow prisoners.” Davidson 
v. O’Lone, 752 F.2d 817, 821 (3d Cir. 1984). Thus prisons have 
a duty to protect inmates from other inmates’ violence. Farmer 
v. Brennan, 511 U.S. 825, 833 (1994). A prison violates that 
duty if it (1) creates conditions that “pos[e] a substantial risk of 
serious harm” and (2) is deliberately indifferent “to inmate 
health or safety.” Id. at 834. How this two-step test works for 
pretrial detainees’ Fourteenth Amendment claims is not entirely 
clear in this circuit. Though the circuits agree that deliberate 
indifference refers to prison officials’ subjective mental state 
under the Eighth Amendment, they differ on whether the Four-
teenth Amendment standard is subjective or objective. Com-
pare, e.g., Short v. Hartman, 87 F.4th 593, 604–11 & n.9 (4th 
Cir. 2023) (collecting cases) (objective), with Strain v. Rega-
lado, 977 F.3d 984, 989–93 (10th Cir. 2020) (subjective).  
But we need not take sides here. Even if Hightower’s right 
to security were violated, no reasonable jury could find the city 
responsible for Hightower’s injuries. To show that the city was 
6 
 
the “moving force” behind the alleged injury, Hightower 
would have to show either that the city (1) had an unconstitu-
tional policy or custom or (2) was deliberately indifferent to 
inmates’ rights. Forrest v. Parry, 930 F.3d 93, 105–06 (3d Cir. 
2019) (internal quotation marks omitted). He cannot show either.  
A. There was no unconstitutional policy or custom  
Hightower says the city had a policy or custom of not sep-
arating inmates by security-risk level during intake. But he 
cannot identify any policy saying that. True, the city had a pol-
icy of separating general population inmates by security level. 
But it did not have any separation policy for inmates during 
intake. And the lack of a policy is not a policy. A policy requires 
“an official proclamation, policy or edict by a decisionmaker 
possessing final authority.” Id. at 105. Plus, the city did have a 
different written intake policy that, if followed, would have 
prevented this attack; Tyler should have gone from the infir-
mary straight to the general jail population. But the city is not 
liable just because its employees did not follow this policy. See 
Monell, 436 U.S. at 691. Challenges to “failures and inadequa-
cies by municipalities” must take the deliberate-indifference 
path, not the custom-or-policy path. Forrest, 930 F.3d at 105. 
Nor has Hightower shown a custom that violated his right. 
Even if he could show that the city had a custom of commin-
gling pretrial detainees that was “so persistent and widespread 
as to practically have the force of law,” the custom would be 
facially constitutional because the Fourteenth Amendment 
does not require the city to reshuffle inmates in intake once 
they are classified. Connick v. Thompson, 563 U.S. 51, 61 
(2011). And the city’s policy of separating general 
7 
 
population inmates by security classification does not, as 
Hightower suggests, make its practice of housing differently 
classified inmates together in intake for mere hours unconsti-
tutional on its face. For a facial constitutional challenge, it 
would be too speculative to assume that higher-classification 
inmates inherently pose a substantial risk of harm to lower-
classification ones while they are briefly comingled in intake. Bis-
trian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012), abrogated on 
other grounds as recognized by Fisher v. Hollingsworth, 115 
F.4th 197, 204 (3d Cir. 2024). 
B. Nor has Hightower shown that the city acted with  
deliberate indifference 
Hightower also argues that the city caused his alleged con-
stitutional injury by failing to separate inmates in intake by 
classification status, a choice that was deliberately indifferent 
to inmates’ rights. Under Monell, deliberate indifference requires 
“proof that a municipal actor disregarded a known or obvious 
consequence of his action.” Bd. of Cnty. Comm’rs v. Brown, 
520 U.S. 397, 410 (1997). Ordinarily, this means that a plaintiff 
must show that “[a] pattern of similar constitutional violations” 
put the city on notice that, by failing to act, it was being delib-
erately indifferent to inmates’ rights. Connick, 563 U.S. at 62.  
Here, too, Hightower falls short. Though a deputy warden 
testified that other violent inmates in intake had attacked non-
violent ones, she could not identify a single example. And 
Hightower’s expert just rehashed equally empty deposition tes-
timony. Though the expert opined that housing Hightower and 
Tyler together was like “mixing predator with prey,” a lurid 
metaphor, he offered no factual support. Without that support, 
8 
 
we cannot say that his opinion could sustain a jury’s verdict. 
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 
U.S. 209, 242 (1993). And at oral argument, counsel could not 
cite any other evidence of a pattern.  
Hightower says the city can be liable even absent any pat-
tern because Tyler’s attack was such an obvious consequence 
of the city’s failure to reshuffle inmates in intake after classifi-
cation. But this single incident of a higher-classification inmate 
assaulting a lower-classification one is not enough to hold the 
city liable. True, the Supreme Court has “hypothesized” that 
“in a narrow range of circumstances, a pattern of similar viola-
tions might not be necessary to show deliberate indifference.” 
Connick, 563 U.S. at 63 (internal quotation marks omitted). 
But it has never found this bar satisfied. And the only hypothet-
ical example of this liability that it has recognized is extreme: if 
a city armed its police with guns and set them loose without 
any legal training on when to use them. City of Canton v. Har-
ris, 489 U.S. 378, 390 n.10 (1989). Not even failing to train 
prosecutors on their Brady disclosure duties is enough. Con-
nick, 563 U.S. at 64 (referring to Brady v. Maryland, 373 U.S. 
83, 87 (1963)). 
Thus, the risk to Hightower was not “so patently obvious” 
that the city can be held liable. Id. Failing to temporarily seg-
regate inmates falls far short of giving police guns without 
training them on the law of deadly force. 
* * * * * 
Hightower suffered greatly. But the city cannot be held lia-
ble. Because the city adopted a reasonable policy for handling 
inmates who are often violent and dangerous, we will affirm. 


Richard Hightower v. City of Philadelphia

Toussaint, Etienne C.

Abolition, Dignity, and Amazing Grace

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-26-2025 
Joseph Lento v. Keith Altman 
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Recommended Citation 
"Joseph Lento v. Keith Altman" (2025). 2025 Decisions. 235. 
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inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
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          NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT  
_____________ 
 
No. 24-1899 
_____________ 
 
 
JOSEPH D. LENTO, Esq., an individual; LENTO LAW FIRM,  
a limited liability company 
 
v. 
 
KEITH ALTMAN, Esq., an individual; THE LAW OFFICE OF KEITH ALTMAN 
PLLC, a/k/a K Altman Law, a limited liability company; ARI KRESCH, an individual; 
RICHARD GILL, an individual; JOHN DOES 1-10, fictitious individuals; 
ABC BUSINESS ENTITIES 1-10, fictitious entities 
 
     KEITH ALTMAN, Esq., an individual; THE LAW OFFICE OF KEITH 
     ALTMAN PLLC, a/k/a K Altman Law, a limited liability company, 
Appellants 
 
_____________ 
 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 1:22-cv-04840) 
District Judge: Honorable Robert B. Kugler 
 
_____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on February 3, 2025 
 
Before: RESTREPO, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Filed:  March 26, 2025) 
 
 
 
 
2 
_________ 
 
OPINION* 
_________ 
 
RESTREPO, Circuit Judge 
This case involves a falling-out between two formerly associated lawyers and their 
namesake law firms.  The drawn-out breakup of this working relationship has been con-
voluted, but the issue before us is narrow.  Pruned from a lawsuit that once involved mul-
tiple defendants and multiple claims, only the dismissal of a single counterclaim is left 
for our review.  So we highlight only the details most salient to that claim.   
Appellants Keith Altman Esq. and The Law Office of Keith Altman PLLC (to-
gether, “Altman”) contend they and Appellees Joseph Lento Esq. and Lento Law Firm 
(together, “Lento”) entered into an agreement dissolving their working relationship in 
which Altman had helped represent Lento’s clients for a split of the fees.  Shortly after 
Altman alleges they contracted to sever ties and release all possible claims, Lento sued 
Altman and two colleagues in federal court.  Altman then brought a counterclaim for 
breach of contract.  All of Lento’s claims have been dismissed, and none are part of this 
appeal.  The District Court also dismissed Altman’s counterclaim, finding that the friends 
turned foes never entered a binding contract.  Altman appeals, and for the reasons below, 
we will affirm. 
 
*  This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does 
not constitute binding precedent. 
 
3 
I. 
In May 2020, Altman started providing legal services to Lento’s clients in ex-
change for a split of the legal fees.  The lawyers never formalized their agreement in writ-
ing.  Instead, the working relationship was defined by an oral agreement that they twice 
modified.  After a few rocky years, they agreed to untether their legal practices.  Altman 
and Lento’s agent negotiated the terms of the breakup and payment of outstanding fees to 
Altman.  Altman started with a demand for $500,000 in unpaid fees.  The day of the ne-
gotiation, Altman sent Lento a document titled “Memorandum of Understanding” that 
purportedly reflected the terms discussed earlier with Lento’s agent.     
Lento followed days later with another document titled “Settlement Agreement 
and Mutual Release.”  Both documents provided for Altman to receive $365,000 in con-
sideration and for mutual release of all claims by both sides, among other terms.  Lento’s 
document left four highlighted blank spaces: three spaces for action deadlines and one for 
the amount that would be placed in an escrow account to pay for chargebacks initiated by 
clients.  Neither document was signed by either party. 
A few days later, Lento sued Altman and two of his colleagues, bringing several 
state and federal claims.  Altman later brought a counterclaim for breach of contract, ar-
guing that the document Lento sent him was a binding contract that Lento then violated 
by suing him.  The District Court first dismissed all of Lento’s claims against Altman’s 
colleagues and some claims against Altman, none of which are at issue in this appeal.  In 
March 2024, the District Court dismissed Altman’s counterclaim, and three weeks later, 
 
4 
it dismissed Lento’s remaining claims for lack of subject-matter jurisdiction.  Altman ap-
peals the dismissal of his counterclaim. 
II. 
The District Court had jurisdiction under 28 U.S.C. §§ 1332 and 1367,1 and we 
have jurisdiction under 28 U.S.C. § 1291.2  We review de novo the District Court’s 
 
1  Altman contends that the District Court erred in maintaining jurisdiction and ruling 
on the merits of his counterclaim after it had dismissed Lento’s federal law claims.  Even 
assuming the District Court only had supplemental jurisdiction over Altman’s counter-
claim, we find no error in the District Court retaining jurisdiction.  A district court “may” 
decline the exercise of supplemental jurisdiction if “the district court has dismissed all 
claims over which it has original jurisdiction[.]”  28 U.S.C. § 1367(c)(3) (emphasis 
added).  The decision is discretionary.   
 
2  Lento’s challenge to our appellate jurisdiction is baseless.  True, the March Order 
dismissing Altman’s counterclaim, was not a final decision under § 1291.  But that order 
merged with the District Court’s final order, so we can review it on appeal.  See In re 
Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996) (“Under the ‘merger rule,’ 
prior interlocutory orders merge with the final judgment in a case, and the interlocutory 
orders . . . may be reviewed on appeal from the final order.”).  It should not surprise 
Lento that an order dismissing all remaining claims, denying his motion to amend the 
complaint, and directing the clerk to close the case is a final decision under § 1291.  See 
H.E. v. Walter D. Palmer Leadership Learning Partners Charter Sch., 873 F.3d 406, 411 
(3d Cir. 2017) (finding that the district court entered an appealable final order when it 
“dissociate[d] itself from the case entirely” after resolving all the claims before it (altera-
tion in original) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714 (1996))).  
 
5 
dismissal of Altman’s counterclaim under Federal Rule of Civil Procedure 12(b)(6).  See 
Foglia v. Renal Ventures Mgmt., 754 F.3d 153, 154 n.1 (3d Cir. 2014).   
III. 
Altman contends that the document Lento sent him is a binding contract.  As a re-
sult, the argument goes, Lento broke the agreement by suing Altman and refusing to pay 
the $365,000. 
Courts review a motion to dismiss a counterclaim under the same standard as a 
motion to dismiss a complaint.  See Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 835 
(3d Cir. 2011).  “[O]ur review is restricted to the face of the counterclaim[,]” id., and any 
exhibits attached to the pleading.  See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 
2014).  The counterclaim should only survive if it states a claim that is “plausible on its 
face.”  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 
This analysis involves three steps.  Santiago v. Warminster Twp., 629 F.3d 121, 
130 (3d Cir. 2010).  First, we note the elements of the claim.  Id.  Second, we identify al-
legations that “are no more than conclusions” and therefore “not entitled to the assump-
tion of truth.”  Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).  In other words, 
we pay no heed to “threadbare recitals of the elements of a cause of action, supported by 
mere conclusory statements.”  Id. at 131 (quoting Iqbal, 556 U.S. at 678).  Nor do we 
consider “naked assertions devoid of further factual enhancement.”  Id.  Third, we accept 
as true the well-pleaded factual allegations, draw all reasonable inferences in the 
 
6 
counterplaintiff’s favor, and determine whether the allegations “plausibly give rise to an 
entitlement to relief.”  Id. at 130 (quoting Iqbal, 556 U.S. at 679).   
The elements of a breach of contract claim under New Jersey law are: (1) that the 
parties entered into a binding contract, (2) that the plaintiff performed, (3) that the de-
fendant breached, and (4) that the breach caused a loss to the plaintiff.  Globe Motor Co. 
v. Igdalev, 139 A.3d 57, 64 (N.J. 2016).   
The key issue here is the first element.  A binding contract’s terms must be precise 
enough such “that the performance to be rendered by each party can be ascertained with 
reasonable certainty.”  Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284 (N.J. 1992) 
(quoting W. Caldwell v. Caldwell, 138 A.2d 402, 410 (N.J. 1958)).  The parties must 
have agreed on the essential terms.  Id.  If they did not, there is no contract to enforce.  
See id. 
We accept the following well-pleaded allegations as true: (1) Lento appointed an 
agent to negotiate outstanding legal fees, and Altman demanded $500,000 during that ne-
gotiation; (2) Later that same day, Altman sent a proposed agreement to dissolve the rela-
tionship—Exhibit A to his counterclaim; (3) Lento responded a few days later with his 
own proposal—Exhibit B to the counterclaim; (4) A few days after that, Lento filed this 
lawsuit; and (5) Altman complied with what would be his obligations under the proposal 
sent by Lento.3 
 
3  Altman’s allegations that presume the existence of a contract are conclusory and 
cannot be accepted as true.  This includes his allegations (1) that the parties entered into 
an agreement, (2) that the Lento draft is binding, (3) that both parties agreed that 
$365,000 was a fair resolution of their dispute, and (4) that Lento breached the contract.  
 
7 
So, did Altman plausibly plead that a binding contract existed?  He claims the doc-
ument Lento sent him is an enforceable agreement.  That document, however, contained 
four highlighted blank spaces: (1) the date by which Altman would return the files for 
pre-litigation student defense clients to Lento; (2) the date by which the parties would 
jointly draft a communication to affected clients; (3) the date by which Altman would 
send new attorney fee agreements to clients presently in litigation; and (4) in a section en-
titled “MUTUAL INDEMNIFICATION,” the total amount the parties would fund an es-
crow account to pay for “chargebacks initiated by clients.”  App. 93–95 (Countercl. Ex. 
B).  The document also included signature lines but was not signed by either party.   
The blank dates, as the parties best understand, appear to be deadlines for obliga-
tions that would finalize the breakup.  Without these timing details, the parties could not 
determine when to untangle their practices.  In other words, these dates were essential 
terms for the alleged agreement.  Adding to this uncertainty, the blank space for the es-
crow account further shows that several terms in this agreement were not “ascertain[able] 
with reasonable certainty.”  Weichert Co. Realtors, 608 A.2d at 284 (quoting W. Cald-
well, 138 A.2d at 410).  The parties could not determine their financial exposure under 
the alleged agreement without that figure.  If anything, the fact that the blank deadlines 
and escrow amount were highlighted underscores the materiality of those terms to the 
parties and implies that negotiations were ongoing.   
The cases Altman relies on are tangential at best.  He cherry-picks dicta describing 
New Jersey’s public policy favoring litigation settlements and minimizing the importance 
of fully fleshed out and signed settlement agreements.  But those cases all involved 
 
8 
motions to enforce settlement agreements negotiated during active litigation.4  This situa-
tion is different.  Altman here seeks to enforce an alleged contract for the dissolution of 
his working relationship with Lento.  The fact that Lento’s draft included a release of all 
claims does not transform Altman’s breach of contract claim into a motion to enforce a 
settlement agreement.  Thus, those cases are easily distinguishable and do not affect our 
conclusion that Altman and Lento never contracted.  
Taken together, we find Altman’s well-pleaded allegations insufficient.  He did 
not plead the existence of a contract with precisely defined essential terms.  Thus, we 
agree with the District Court that he failed to state a plausible claim for breach of con-
tract. 
IV. 
For the above reasons, we will affirm the District Court’s order. 
 
4  See e.g., Dep’t of Pub. Advoc. v. N.J. Bd. of Pub. Util., 503 A.2d 331, 331–32 (N.J. 
Super. Ct. App. Div. 1985) (reversing the decision of a public utilities board to alter the 
terms of a settlement agreement which had resolved a pending case); Lahue v. Pio Costa, 
623 A.2d 775, 776–77 (N.J. Super. Ct. App. Div. 1993) (compelling compliance with an 
oral agreement settling active litigation); Bistricer v. Bistricer, 555 A.2d 45, 46 (N.J. Su-
per. Ct. Ch. Div. 1987) (giving effect to an oral agreement reached during a settlement 
conference despite the parties’ inability to later agree on a fleshed-out writing); Mid-
Monmouth Realty Assocs. v. Metallurgical Indus., Inc., No. 0503-14, 2016 WL 6776115 
(N.J. Super. Ct. App. Div. Nov. 16, 2016) (enforcing a settlement agreement when the 
parties had agreed to the essential terms, even advising the court of its imminent consum-
mation, but plaintiff later refused to execute the release documents).  


Joseph Lento v. Keith Altman

USDC for the Western District of Pennsylvani

Solomon Carter v. Wetzel

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-8-2025 
USA v. Glenn Long 
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"USA v. Glenn Long" (2025). 2025 Decisions. 273. 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1086 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
GLENN LONG 
a/k/a 
BLESS 
a/k/a 
MAX, 
Appellant 
____________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 1:22-cr-00078-001) 
District Judge:  Honorable Noel L. Hillman 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
March 27, 2025 
____________ 
 
Before:  BIBAS, PHIPPS, and AMBRO, Circuit Judges 
 
(Filed: April 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 
PHIPPS, Circuit Judge. 
A criminal defendant who pleaded guilty to one count of conspiracy to distribute 
and possess with intent to distribute methamphetamine and fentanyl was sentenced to 
216 months’ imprisonment.  Although that sentence was based on a significant downward 
variance, the defendant now contends that it was imposed in error.  He argues that his 
sentence incorrectly accounted for the purity of the methamphetamine at issue; that he was 
not an organizer or leader of a conspiracy of five or more persons; and that denying him a 
more significant downward variance was unreasonable.  None of those arguments have 
legal merit, and for the reasons below, we will affirm the sentence. 
I. BACKGROUND 
In February 2022, a federal grand jury in Camden, New Jersey, returned an 
indictment against Glenn Long.  See 18 U.S.C. § 3231.  As amended, the indictment 
charged Long with six counts related to the operation of a drug trafficking conspiracy.  
Under the terms of an agreement that he entered into with the Government, Long pleaded 
guilty to one count of conspiracy to distribute methamphetamine and fentanyl, and he 
stipulated that the conspiracy possessed approximately 2,759 grams of a substance that was 
98% pure methamphetamine, as well as more than 400 grams of mixtures and substances 
containing fentanyl.  See 21 U.S.C. § 846.  In return, the Government agreed to drop the 
remaining five charges, but it did not promise to recommend any particular sentence. 
Based on Long’s Category IV criminal history and a total offense level of 37 (which 
included a three-point reduction for accepting responsibility, see U.S. Sent’g Guidelines 
Manual § 3E1.1(b) (U.S. Sent’g Comm’n 2024)), his recommended sentence was 292 to 
365 months.  Under the Sentencing Guidelines, Long’s offense level would have been four 
points lower if it had not been possible to determine the amount of actual 
3 
methamphetamine in the drugs attributed to the conspiracy, see U.S. Sent’g Guidelines 
Manual § 2D1.1(c)(4), but based on the stipulations as to the drug weight of 2,759 grams 
and drug purity of 98%, the amount of actual methamphetamine was calculable, see id. 
§ 2D1.1(c)(2).  Compare id. Note (A) to the Drug Quantity Table, with id. Note (B) to the 
Drug Quantity Table.  Long’s recommended sentence was also based on an upward 
adjustment for being an organizer or leader of a conspiracy of five or more persons, and 
without that adjustment, his offense level would have been four points lower.  See id. 
§ 3B1.1(a).  If Long’s offense level had been reduced by four points on either ground, then 
his Guidelines range would have been 188 to 235 months, and with both four-point 
reductions, his Guidelines range would have been 121 to 151 months.  See id. ch. 5, pt. A., 
Sent’g Table.   
At sentencing, Long argued against the application of both the actual 
methamphetamine formula and the organizer-leader adjustment.  He also sought a 
downward variance to avoid a disparity with the sentences that his coconspirators received.  
See 18 U.S.C. § 3553(a)(6).  The District Court denied both attempts to reduce the offense 
level by four points.  But in consideration of the factors set forth at 18 U.S.C. § 3553(a), it 
varied downward from the 292-to-365-month Guidelines range and imposed a prison 
sentence of 216 months.   
Unsatisfied with that outcome, Long invoked this Court’s appellate jurisdiction by 
filing a notice of appeal.  See 28 U.S.C. § 1291; 18 U.S.C. § 3742(a).  He now argues that 
the District Court erred in rejecting each of his arguments in favor of a lower sentence.   
II. DISCUSSION 
None of Long’s challenges have merit. 
4 
As to his argument that he should not have been sentenced based on the purity of 
methamphetamine, the Sentencing Guidelines use a Drug Quantity Table to determine a 
defendant’s base offense level.  See U.S. Sent’g Guidelines Manual § 2D1.1(a)(5) 
(directing the use of the Drug Quantity Table to determine the base offense level); id. 
§ 2D1.1(c) (the Drug Quantity Table).  According to that Table, having at least 1.5 but less 
than 4.5 kilograms of “[m]ethamphetamine (actual)”1 or having a converted drug weight 
of at least 30,000 but less than 90,000 kilograms results in a base offense level of 36.  Id. 
§ 2D1.1(c)(2).  Under the first method, the amount of actual methamphetamine attributable 
to the conspiracy – 2,759 grams of a substance multiplied by 98% – is at least 1.5 but less 
than 4.5 kilograms.  See id. § 2D1.1(c), Note (B) to the Drug Quantity Table.  And under 
the second method, a conversion rate of twenty kilograms per gram of actual 
methamphetamine and 2.5 kilograms per gram of fentanyl attributable to the conspiracy 
produces a drug weight of at least 30,000 but less than 90,000 kilograms.  See id. § 2D1.1 
cmt. n.8(D).  Instead of using those methods, Long argues that the purity of the 
methamphetamine attributed to the conspiracy should have been disregarded, which would 
have reduced the base offense level by four points.  See id. § 2D1.1(c)(4); cf. id. 
§ 2D1.1(c)(2) & Note (B) to the Drug Quantity Table.  But other than a policy disagreement 
with the Guidelines – a claim that using the purity ratio is anachronistic for today’s drug 
markets – Long provides no reason for using a diluted drug weight.  Accordingly, the 
District Court did not abuse its discretion in setting Long’s base offense level at 36.2   
 
1 Note (B) to the Drug Quantity Table defines “Methamphetamine (actual)” as “the weight 
of the controlled substance, itself, contained in the mixture or substance.”  U.S. Sent’g 
Guidelines Manual § 2D1.1(c), Note (B) to the Drug Quantity Table. 
2 This result holds with or without affording weight to the conversion table in the 
commentary to the Guidelines because even without a conversion, the amount of actual 
methamphetamine attributable to the conspiracy qualifies for a base offense level of 36.  
Cf. United States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en banc) (evaluating 
5 
Long also challenges the application of the organizer-leader adjustment.  See id. 
§ 3B1.1(a); United States v. Adair, 38 F.4th 341, 354 (3d Cir. 2022) (defining the terms 
‘organizer’ and ‘leader’).  He argues that because he had substantially the same role as two 
of the other members in the conspiracy, he could not have been an organizer or leader.  But 
there is no such rule of law.  To the contrary, there can be multiple organizers or leaders of 
a conspiracy – even one consisting of fewer than five people.  See Adair, 38 F.4th at 351–
52 (citing U.S. Sent’g Guidelines Manual § 3B1.1(a)).  As an alternative, Long contends 
that he did not organize or lead at least five of the members in the conspiracy.  Again, that 
is not a requirement for the adjustment – only that the conspiracy have five or more 
participants or be “otherwise extensive.”  U.S. Sent’g Guidelines Manual § 3B1.1(a); see 
United States v. Helbling, 209 F.3d 226, 248 (3d Cir. 2000) (explaining that the defendant 
counts as one of the five participants, thereby demonstrating that an organizer-or-leader 
relationship with five participants is not required).  Thus, Long provides no basis for a 
“definite and firm conviction that a mistake has been committed” in the application of this 
upward adjustment.  United States v. Denmark, 13 F.4th 315, 317 (3d Cir. 2021) (quoting 
United States v. Napolitan, 762 F.3d 297, 307 (3d Cir. 2014)). 
Long also claims that it is impermissible double counting to calculate the base 
offense level using the purity of the methamphetamine and then to adjust upward for the 
organizer-leader classification.  As he sees it, accounting for the purity of the 
methamphetamine is a means of punishing persons at the highest level of a drug conspiracy, 
as is the organizer-leader adjustment.  That contention, even if substantiated factually, does 
not help him because “double counting is permissible so long as the Guidelines do not 
explicitly prohibit simultaneous application of the provisions in question,” and neither of 
 
Guidelines commentary under the deference standard in Kisor v. Wilkie, 588 U.S. 558 
(2019)).   
6 
the relevant Guidelines prevent the application of the other.  United States v. Seibert, 
971 F.3d 396, 400 (3d Cir. 2020), amended by 991 F.3d 1313 (3d Cir. 2021); cf. 
U.S. Sent’g Guidelines Manual § 2D1.1; id. § 3B1.1.  
Finally, Long attacks the reasonableness of his sentence.  He renews his policy 
argument against the pure methamphetamine ratio, and he contends that his sentence 
created an unwarranted disparity in comparison to his coconspirators as well as to other 
defendants convicted of drug offenses who have not been sentenced pursuant to the ratio.  
But there was no procedural shortcoming in the imposition of the sentence.  The District 
Court gave due consideration to Long’s disparity and pure-meth-ratio arguments in favor 
of a variance.  Nor were more individualized findings necessary with respect to Long’s 
knowledge of the scope of the conspiracy: he stipulated that he could reasonably foresee 
that 2,759 grams of 98% pure methamphetamine was possessed by and within the scope of 
the conspiracy.  And substantively, the District Court accounted for those concerns by 
granting a downward variance of at least 76 months.  Therefore, Long has failed to establish 
that no reasonable sentencing court would have imposed the same below-Guidelines 
sentence for the reasons given by the District Court.  See United States v. Lacerda, 958 F.3d 
196, 215 (3d Cir. 2020). 
III. CONCLUSION 
For the above reasons, we will affirm Long’s sentence. 


USA v. Glenn Long

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
4-10-2025 
USA v. Anthony Percell 
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Recommended Citation 
"USA v. Anthony Percell" (2025). 2025 Decisions. 283. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/283 
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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. 24-1076 
____________ 
 
UNITED STATES OF AMERICA, 
 
v. 
 
ANTHONY PERCELL, 
a/k/a D.S., 
Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(District Court No. 2:22-cr-00259-001) 
District Judge:  Honorable R. Barclay Surrick 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
March 11, 2025 
____________ 
 
Before:  SHWARTZ, RESTREPO, and CHUNG, Circuit Judges 
 
(Filed April 10, 2025) 
____________ 
 
OPINION1 
____________ 
 
CHUNG, Circuit Judge. 
For nearly three decades, appellant Anthony Percell used and assumed the identity 
 
1 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 
not constitute binding precedent. 
2 
of D.S., a deceased friend.2  Percell was charged with and pleaded guilty to aggravated 
identity theft, among other crimes, in relation to his use of D.S.’s identity.  On appeal, 
Percell argues that the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), does 
not criminalize the use of a deceased person’s identity.  We conclude that Percell 
forfeited this argument by failing to raise it before the District Court in his motion to 
dismiss.  We will therefore affirm. 
On August 9, 2022, Percell was charged with several crimes in connection with 
his use of D.S.’s identity, including aggravated identity theft for fraudulently obtaining a 
passport (“Count 12”).  Prior to trial, Percell moved to dismiss Count 12, arguing that the 
conduct charged in Count 12 did not constitute aggravated identity theft under the 
Supreme Court’s recent holding in Dubin v. United States, 599 U.S. 110, 131 (2023).  
The District Court denied his motion.  Percell then pled guilty to all counts pursuant to an 
agreement with the government.3  On January 2, 2024, the District Court sentenced 
Percell to a twenty-four-month term of imprisonment on Count 12, and a term of one day 
on all remaining counts.  Percell timely appealed.4 
Percell’s sole argument on appeal is that the aggravated identity theft statute, 18 
 
2 Because we write for the parties, we recite only facts pertinent to our decision. 
3 Percell reserved his right to appeal the District Court’s denial of his motion to 
dismiss Count 12.   
 
4 The District Court had jurisdiction under 18 U.S.C. § 3231.  We have jurisdiction 
under 18 U.S.C. § 1291.  “We review the District Court’s legal conclusions de novo and 
its factual determinations, including its findings about the contents and purposes of the 
acts alleged in the Indictment, for clear error.”  United States v. Menendez, 831 F.3d 155, 
164 (3d Cir. 2016) (emphasis omitted). 
3 
U.S.C. § 1028A(a)(1), does not criminalize the use of a deceased person’s identity.  The 
government contends that Percell forfeited this argument by failing to raise it in his 
motion to dismiss.  Alternatively, the government argues that the aggravated identity theft 
statute applies to the use of either a living or deceased person’s identity.  We agree with 
the government that Percell forfeited his argument by failing to raise it in the District 
Court and thus do not reach the alternative argument. 
Under Fed. R. Crim. P. 12(b)(3)(B), a defendant “must” raise by pretrial motion 
certain defects in the indictment, including its failure to state an offense.  To preserve a 
Rule 12 challenge for appellate review, “a party must make the same argument in the 
District Court that he makes on appeal.”  United States v. Joseph, 730 F.3d 336, 341 (3d 
Cir. 2013).  Merely “raising an issue in the District Court is insufficient to preserve for 
appeal all arguments bearing on that issue.”  Id. (emphases added); see Brennan v. 
Norton, 350 F.3d 399, 418 (3d Cir. 2003).  The central inquiry is “whether [the party] 
presented the argument with sufficient specificity to alert the district court” to the 
argument.  Keenan v. City of Philadelphia, 983 F.2d 459, 471 (3d Cir. 1993). 
Percell did not raise the argument in his motion to dismiss that he now presses on 
appeal.  In his motion to dismiss, Percell asserted only that the conduct charged in Count 
12 did not rise to the level of aggravated identity theft because the use of D.S.’s identity 
was not the “crux” of the crime of passport fraud as required by Dubin.   599 U.S. at 131 
(statutory requirement that a defendant “use” another person’s identification “in relation 
to” a predicate offense is only satisfied when the defendant’s use is “at the crux of what 
makes the [predicate offense] criminal”).  J.A. 39-40.  Percell nowhere asserted, however, 
4 
that Section 1028A(a)(1) criminalized only the use of a living person’s identification.  
His motion to dismiss did not reference this issue, much less make “the same argument” 
that he now raises on appeal.  Joseph, 730 F.3d at 341.  Nor is Percell simply 
“refram[ing],” id., his original Dubin argument into one about the reach of Section 
1028A(a)(1).5   
We are also unpersuaded by Percell’s assertion that, because the District Court 
addressed the issue, his argument is preserved.  To be sure, the District Court discussed in 
a footnote whether Section 1028A(a)(1) criminalized the use of a deceased person’s 
identity.  We agree with the government, however, that the District Court’s passing 
statement was no more than legal background and was not an independent holding.  More 
importantly, the forfeiture inquiry assesses whether the party, not the District Court, 
sufficiently raised and therefore preserved the argument for appellate review.  See, e.g., 
Keenan, 983 F.2d at 471; Brennan, 350 F.3d at 418; United States v. Abreu, 32 F.4th 271, 
275 (3d Cir. 2022).  We therefore conclude that Percell forfeited his current argument by 
failing to raise it before the District Court.6 
 
5 Percell’s attempt to shoehorn his argument into Dubin does not persuade us that he 
presented “the same argument” to the District Court.  Joseph, 730 F.3d at 342.  Dubin’s 
narrow construction of the terms “uses” and “in relation to” says nothing about the 
meaning of the term “person.”  See Dubin, 599 U.S. at 131.  And citation to the same 
legal authority does not compel the conclusion that a litigant advanced the same 
argument.  See Joseph, 730 F.3d at 341 (identical arguments must “depend on the same 
legal rule or standard”). 
6 We cannot consider a forfeited argument unless the party shows good cause for 
failing to raise it in the District Court.  See Fed. R. Crim. P. 12(c)(3); United States v. 
Sok, 115 F.4th 251, 259 (3d Cir. 2024).  Percell expressly declined to argue that he had 
good cause for failing to timely assert this argument.  We are therefore barred from 
considering it. 
5 
For the reasons set forth above, we will affirm. 
 


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